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       Wednesday, September 27, 2006

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Parliament Attack Death sentence to Afzal - Why Supreme Court verdict should be read by Manmohan Singh ?

A DELHI court on Tuesday ordered that Mohammed Afzal, the Jaish-e Mohammed militant sentenced to death in the 2001 Parliament attack case, be hanged on October 20. Additional Sessions Judge Ravinder Kaur fixed 6 a.m. as the time for Afzal's execution at the Tihar Jail. Afzal was awarded the death sentence by a sessions court in 2002. The punishment was upheld by the Delhi High Court in 2003 and by the Supreme Court last year. In its judgment, the Supreme Court called Afzal a "menace to society" whose "life should become extinct" to satisfy the "collective conscience of the society". In the same verdict the Supreme court had set aside the death sentence awarded to Afzal’s cousin, Shaukat Hussain Guru, and sentenced him to 10 years’ rigorous imprisonment with a fine of Rs 25,000. It observed that Shaukat had knowledge of the conspiracy but was not party to it. The SC had also upheld the HC’s acquittal of Delhi University lecturer S.A.R. Geelani and acquitted Shaukat’s wife Afsan Guru.

Opposing the death penalty awarded to Jaish-e-Mohammad militant Mohd Afzal responsible for the attack on Parliament, a senior CPI(M) leader has sought the intervention of the President in the matter. The death sentence comes at very appropriate time as a debate rages in India over Prime Minister Manmohan Singh's Havana handshake with Pakistan President Pervez Musharraf and the resumption of the peace process with the setting up of a India Pakistan joint Anti-Terrorism Institutional Mechanism. The debate has drawn a very sharp division with the Sonia Gandhi Congress lead UPA and its Communist allies to the left on one side and the BJP and a growing number of ex-diplomats and Intelligence Officials on the other side. The english news media has pretty much toed the Prime Minister's line in its op-ed columns and editorial comments. The near total endorsement of the Prime Minister's line by the english news media can be attributed to the rather effective spin machine lead by Sanjay Baru the Prime Minister's media advisor and a former journalist.

The Baru lead Goebbel offensive was in full view of the country when an e-mail exchange between him and former foreign secretary G. Parthasarthy was inadvertently leaked tot he media. In the e-mail Baru was highly critical of B. Raman a former IB chief who has been most vocal in criticizing the India Pakistan Anti-Terrorism mechanism. Baru had called Raman and Parthasarthy closet BJP wallahs and accused them of toeing the Narendra Modi line. That the PMO views Gujarat Chief Minister as enemy number one, and chose to frame its response to the BJP's cricism with a Narendra Modi angle, betrays two things - first that the Congress has pretty much concluded that the future face of the BJP is Narendra Modi, the second is the nervousness within the Congress that a Narendra Modi lead BJP would be a formidable foe in 2009.

So how does the death sentence on October 20th for the Parliament attack impact the ongoing terrorism debate between India and Pakistan. Offstumped has extensively analyzed the 2005 Supreme Court verdict on the case and the Supreme Court's opinion is a must reading for all Right Minded Indians, for it provides the much needed moral and legal compass for framing our response to terrorism. Of specific interest to Offstumped in the Supreme Court verdict against Afzal was the question of "Waging War" and if the terrorist attack on the Indian Parliament constituted an act of war against India.

In answering this question the Supreme Court went back as far as 1351 into the British Statute. The supreme court then quotes case after case through the 16th century on what constitutes an act of war. What is particularly interesting is a reference to a 1820 case Rex Vs. Andrew Hardie where the distinction between a riot and an act of war was outlined. This is particularly recommended reading for the psuedo secularist congress and its allies in the media and to the left who have spent more time lecturing to us about communal harmony than on recognizing terrorism for what it is. Subsequently the Supreme court quotes a 1946 case which outlines specifically that the true criterion for determining if an offence amounted to war is if the objective of the act was to attain by forceand violence an object of a general public nature, thereby striking directly against the State's authority. The other pivotal observation by the Supreme Court was on section 121

"Whoever wages war against the Government of India or attempts to wage  such war, or abets the waging of such war, shall be punished with death or  imprisonment for life and shall also be liable to fine".

The Supreme court observes that the concept of war imbedded in Section 121 is not to be understood in international law sense of inter-country war involving military operations by and between two or more hostile countries. 'war' contemplated by Section 121 is not conventional warfare between two nations. Organizing or joining an insurrection against the Government of India is also a form of war. The Supreme Court then goes on to identify what is it that makes Terrorist strikes acts of war.

the normal tranquility of a civilized society is, in each of the cases mentioned, disturbed either by actual force or at least by the show and threat of it

The Supreme Court then goes on to examine the specific provisions of POTA, as the parliament attack case was tried under POTA, to determine if the attack on parliament constituted an act of war. In doing so, the Supreme court looks at international definitions of war as well as reiterates the English statute on wages of war. The pivotal criterion applied in the past the Supreme Court concludes is

If the object and purpose is to strike at the sovereign authority of the Ruler or the Government to achieve a public and general purpose in contra-distinction to a private and a particular purpose, that is an important indicia of waging war

The other more important distinction and clarification drawn by the supreme court is that



the number of force, the manner in which they are arrayed, armed or equipped is immaterial ... there need not be the pomp and pageantry usually associated with war

The Supreme court then goes on to strike cautious note

A balanced and realistic approach is called for in construing
the expression 'waging war' irrespective of how it was viewed in the long long
past.


The Supreme court further clarified what its realistic approach would be by excluding

An organized movement attended with violence and attacks against the
public officials and armed forces while agitating for the repeal of an unpopular
law or for preventing burdensome taxes


The supreme court also observed that it would also look at the intent and designs of those committing a terrorist act and the scale of violence that is to follow could also be applied to drawn an inference of waging war. In the case of the December 13th attack on Parliament the Supreme Court concluded that it was an act of war because the target chosen was the Indian Parliament, a symbol of sovereignty of the Indian republic.

The attack of this nature cannot be viewed on the same footing as a terrorist attack on some public office building or an incident resulting in the  breach of public tranquility.

The deceased terrorists were roused and impelled to action by a strong anti-Indian feeling

To underestimate it as a mere desperate act of a small group of persons who were sure to meet death, is to ignore the obvious realities and to stultify the wider connotation of the expression of 'war' chosen by the drafters of IPC.

The undoubted objective and determination of the deceased terrorists was to  impinge on the sovereign authority of the nation and its Governm

The learned senior counsel for the Defense Mr. Ram Jethmalani contended that terrorism and war are incompatible with each other. War is normative in the sense that rules of war governed by international conventions are observed
whereas terrorism is lawless, according to the learned counsel. This is the same pusillanimous agruments we hear every day from the Left and from the op-ed columns of the english news media. The Supreme Court gave a stinging reply to this moral obfuscation with crystal clarity.

This contention presupposes that the terrorist attacks directed against the institutions and the machinery of the Government can never assume the character of war. The argument is also based on the assumption that the expression 'war' in Section 121 does not mean anything other than war in the strict sense as known in
international circles i.e. organized violence among sovereign States by means  of military operations. We find no warrant for any of these assumptions and  the argument built up on the basis of these assumptions cannot be upheld. ... It is not necessary that in order to constitute the offence of waging war, military or other forces should have been the direct target of attack.


It is important to note that Afzal who had joined JKLF, a militant outfit during the year 1989-90, receiving training in Pak Occupied Kashmir in insurgent activities and came back to India with arms, surrendered before BSF in 1993. He was motivated again to join 'Jihad' for liberation by one Ghazibaba (proclaimed offender) in Kashmir who further exhorted him to join the movement and apprised him of the mission to carry out attacks on important institutions in India. Based on this and other considerations the Supreme Court upheld the life sentence and death sentence to Mohammad Afzal for waging an act of war and abetting it.

Prime Minister Manmohan Singh defending his Havan handshake with Musharraf said rather lamely that "what other alternative do we have but to go to war". Manmohan Singh needs to read the Supreme Court verdict and realize that his Government is in serious breach of duty every time Terrorists have struck with deadly force with the intent and design to attack the Sovereignity of the Indian State and to destabilize it. Be it in Delhi, or on 7-11 in Mumbai or in Malegaon, the nation is already at War. So Manmohan Singh's lame protestations notwithstanding the fact is the India Pakistan joint Anti-Terrorism mechanism and the peace process are in serious denial of this fact. In fact theygo further to institutionalize this denial, by equating these acts of war to those being perpetrated for achieving a particular political objective in Kashmir.

Over the weekend op-ed columns by Barkha Dutt and Vir Sanghvi appearing in the Hindustan Times attempted to further legitimise this Manmohan line by claiming to be privy to how and why the joint mechanism was proposed. While Barkha claimed it was an entirely Indian idea that was sprung on the occassion on a retiring Pakistani diplomat, Vir Sanghvi claimed the opposite that it was Pakistan which brought up the idea while referring to its arrangements with the USA and UK. Sanghvi also prefaced his piece with a long monologue on how his position on this issue was more nuanced than the others. The fact of the matter however is, both Barkha and Sanghvi writing in the same newspaper, claiming privy to the same source, Sanjay Baru, cannot both be right at the same time. This further goes on to show how confused the psuedo Intellectuals in the Indian news media are about this issue.

The moral obfuscation of a state of war against India by the left and the congress spin meisters to post facto justify a lop sided peace initiative and an ill thought insitutional mechanism are a sad commentary on the state of affairs in India. The BJP for all its faults was at least most effective in applying POTA to the december 13th attack, conducting a flawless investigation to unravel the conspiracy and bring to justice the abettors of that act of war. LK Advani stands vindicated on this count despite his other failings.

Offstumped Bottomline: The death sentence to Afzal for the December 13th 2001 attack on the Indian Parliament is an important reminder to the Manmohan Singh Government to get its moral bearings right on how to characterize and deal with Terrorism. Unless the Manmohan Singh Government can demonstrate that it understands the difference between general acts of crime and specific acts of War, and has the spine to act accordingly in response to them one cannot take its Pakistan proposals with any credibility.




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posted by Yossarin at 11:13 AM  

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