Executions as a Matter of Opinion

NEW DELHI â€" When Indian cops take defendants to court, they walk holding hands, as if they were grim lovers. In photographs and video footage of Muhammad Afzal, also known as Afzal Guru, he can be seen being led in this manner by a man in uniform. But the state had no affection for Mr. Afzal.

He was found guilty of helping terrorists who attacked the Indian Parliament in 2001, and thus of “waging war against India,” among other serious charges. His was a long and complicated case, with gaping holes in the police investigation; even the Supreme Court, the highest in India, found that he was implicated not by direct evidence, but by a clutch of circumstances that pointed to his involvement.

Though the courts found Mr. Afzal to be complicit in the attack on Parliament, it remains unclear just how significant his role in the plot was.

Last Saturday morning, he was hanged in secrecy in the Tihar jail in New Delhi. According to the newspaper The Hindu, the 43-year-old was informed of his fate on the morning of the hanging, and after regaining his composure he wrote a letter to his wife and son, which he handed to a jail official as he emerged from his cell for the short walk to the gallows.

The hanging of Mr. Afzal, which surprised the nation and shocked his family, led to expressions of joy from politicians of various parties, as well as ordinary citizens. The world that Mr. Afzal was found unfit to live in was also a world that had the capacity to celebrate a human death. But there were also many who were disgusted, and who protested â€" and not merely in the Kashmir Valley, Mr. Afzal’s birthplace, where a curfew was imposed â€" because the execution has raised a number of deep concerns. Taken together, they point to a disturbing question: Is the Indian justice system competent, consistent and fair enough to grant the state the moral authority to terminate a human life

On Dec. 13, 2001, five armed men in a car drove into the outer fringes of the Parliament compound and opened fire, killing eight security personnel and a civilian. All five attackers, about whom no substantial information has been made public, were soon killed.

According to the police, a trail led from the dead militants to Mr. Afzal and three others â€" two of whom were also sentenced to death by lower courts, before the Supreme Court, insufficiently impressed by the evidence, overturned one conviction and commuted the other man’s sentence to 10 years.

But the Supreme Court upheld Mr. Afzal’s death sentence, making an observation that would be extraordinary in any mature democracy: “The incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.”

The question is not whether the esteemed court is competent to gauge the “collective conscience of the society” but whether that conscience, whatever it might be, should influence the court’s judgment in the first place. And if it should, then it is hard to overlook a huge body of educated, patriotic and law-abiding Indians who have been saying through all available channels that their “conscience” will be satisfied only if their nation ends the practice of executing people.

Also, there is the matter of inconsistency. There are people who have been sentenced to death for assassinations or for waging war against the state who have yet to be hanged, even though they were sentenced long before Mr. Afzal was. There is no logic that explains why one man in India must hang before another man. The state can, through the sheer force of technicalities, prolong the life of a person on death row, while in a less fortunate person’s case using its discretion to rush through the formalities. In this way, political calculations have been allowed to seep into what should be a purely judicial process.

Indian courts are supposed to impose the death penalty only in the “rarest of rare” cases. But this qualifier has proved to be highly subjective. Recently, the Supreme Court spared the life of a man who had killed his wife and daughter while out on parole; he had been in prison for raping that daughter when she was a minor. The court believed he could be reformed. A few days later, another Supreme Court bench sentenced a man to death for the murder of a 7-year-old boy, having taken into account the fact that the boy was his parents’ “only male child.”

There is outrage, of course, over the implication that those parents’ anguish would have been less, and therefore the crime less heinous, if the child had been a girl.

But there are times, it appears, when the Indian justice system does not wish to satisfy “the collective conscience of the society.”

Manu Joseph is editor of the Indian newsweekly Open and author of the novel “The Illicit Happiness of Other People.”

A version of this article appeared in print on February 14, 2013, in The International Herald Tribune.