NEW DELHI: Mohammad Afzal Guru is supposed to hang. His conviction for his role in the conspiracy to attack Indian Parliament in 2001 was upheld by the Supreme Court in August. He was deemed guilty enough to receive the "rarest of rare" sentences: the death penalty. The hanging was set for October 20, but was delayed as a mercy petition awaits the decision of the government and, eventually, President A.P.J. Abdul Kalam.

Much has been said and written about this case. Most Kashmiri leaders say the hanging will adversely affect the ongoing peace process. One of India’s leading magazines published an essay by Booker Prize winner Arundhati Roy arguing against the sentence. Its rival magazine ran an opinion poll of urban Indians that found 78 per cent opposed "liberal rhetoric" such as hers, and believed Afzal should be hanged. In fact, some right-wing Hindu groups even held a mock hanging to support this claim.

Some say that Mohammad Afzal was able to appeal his conviction and therefore has no reason to complain. The legal system has worked. Others say that the guilty verdict was based on unconvincing circumstantial evidence. Activists also point out that he did not receive proper legal counsel.

Let’s be clear at the outset. Human Rights Watch unequivocally opposes the death penalty. Guilty or not, we believe that neither Mohammad Afzal Guru, nor Priyadarshini Mattoo’s killer, Santosh Kumar Singh, nor Saddam Hussein, nor anyone else, should be executed. Taking the life of a human being is inherently cruel, and as a form of punishment is unique in its irreversibility. The intrinsic fallibility of all criminal justice systems assures that even when there is a fair judicial process, innocent persons will still be executed. On a practical level, there is no evidence that it is an effective deterrent.

The sentencing of Mohammad Afzal also represents a different and perhaps deeper problem in India. As a former militant, at the very least it seems clear that Mohammad Afzal once sympathised with Kashmir militancy. Militants blow up markets and kill Indian soldiers and civilians. In the common Indian narrative, Indian soldiers are the good guys, and militants are the "bad guys." Bad guys deserve to be punished.

Yet the backbone of any proper legal system is that individuals who commit crimes should be prosecuted and punished for their specific actions, not for who they supposedly represent. For many in India’s powerful middle class with little real understanding of the complexities of Kashmir, Kashmiris have become a distant "other," interchangeable people who need not be considered as individuals. Thus, whether Mohammad Afzal was a key figure in the attack deserving a long criminal sentence or just a marginal figure whose actions merit a much lesser punishment is of little concern. This needs to change if there is any chance of a resolution of the conflict or, in the meantime, making the justice system work in a fair and impartial manner.

Recently, Human Rights Watch became the first international organisation to release a human rights report ("Everyone Lives in Fear: Patterns of Impunity in Jammu and Kashmir") in Srinagar. We noted that in Jammu and Kashmir, police and soldiers have been given extraordinary legal powers to tackle a violent armed conflict. Any such law is based on trust that those thus empowered will not abuse it. Unfortunately, our research found that this trust has been violated, and that abuse is common practice.

In Kashmir a person can be lawfully arrested for committing or planning offences against national security, such as harbouring militants, hiding weapons or planning an attack. But the extraordinary powers that the state provides to its security forces also encourage abuses. To take but one example, there are so many weapons in a conflict area like J&K that to plant evidence such as a grenade or a gun is all too easy — and presents a credible story that is hard to rebut.

Many Kashmiris have to supply food or shelter to militants at the point of a gun. Yet, the Public Safety Act can be used, or abused, to put such people in detention for years, held without trial, because the state never has to prove their guilt. Often the basis of detention is highly unreliable information provided during the coerced confession of another, usually through torture or the threat of torture.

Sadly, Kashmiri lawyers are grateful when a person turns up in detention. Not because they can make some extra money from another client, but because it means the government has publicly admitted that it has the person in custody, and the detainee’s life, therefore, becomes more secure. Those who do not turn up in an official place of detention frequently "disappear" or turn up dead, killed in a faked armed encounter.

Both the government of India and much of the population are aware that this happens. There is however, a widespread wink and nod. Some may believe that "bad guys" deserve to die and inquire no further. Government officials explain privately that there is little option to use such measures because the legal and judicial process is flawed. It takes too long and it is too hard to secure a conviction, they say. Witnesses, terrified of reprisals from the militants, refuse to testify against them. Detaining militants carries the risk that their comrades will organise jail breaks, abductions or plane hijackings to gain their release. So the security forces often murder those they believe to be guilty. A police report is lodged describing an armed encounter or an escape attempt.

The Armed Forces Special Powers Act, used when troops are deployed to tackle internal insurgencies, has been widely criticised because it allows enormous powers to arrest and shoot to kill. The Act has also been used to protect military personnel responsible for abuses, leading to widespread impunity for human rights abuses. For example, five days after 36 Sikhs were killed in Chattisinghpora in March 2000, the Army and police claimed to have killed the militants that were responsible. The Central Bureau of Investigation discovered that the Army had lied, that the so-called militants killed were illegally detained villagers who had nothing to do with the massacre. Earlier this year, five officers were charged with murder. These men are now claiming immunity from prosecution under the Armed Forces Special Powers Act. For this reason, in J&K many troops believe they can get away with murder. Because of these abuses, a government-appointed committee in 2005 said the Act should be repealed. But the government refused to release the report and has not acted.

Justice in J&K has taken a peculiar form where patriotism, nationalism, political ideology, duty, and religion, all dance to their own tune of retribution. The killing of supposed informers and traitors by militants, attacks upon civilians by both government forces and militants, and the torture and summary execution of supposed militants by troops — all illegal in both peacetime and wartime — are common in J&K. The militants actually responsible for such attacks are seldom prosecuted. Nor do troops responsible for such killings face transparent courts-martial or criminal courts.

In light of all of this, it is important to consider Mohammad Afzal Guru’s case very carefully. Is he really the person that so many Indians supposedly want dead? Or are they taking out their frustrations on an easy target? For many, Afzal bears the burden of representing all those who dare to oppose Indian rule in restive parts of the country, because the attack on Parliament was an attack on India. Conversely, many Kashmiris would say that Afzal is a freedom fighter, planning an attempt at the symbol of Indian oppression.

Both views are flawed. For this multi-religious, multi-ethnic, multi-cultural state to survive, Indians have to believe in equal justice for all. And in the case of J&K, there has been consistent failure to deliver on this promise. Dealt with properly, the case of Mohammad Afzal could be part of the solution, not part of the problem.—By arrangement with The Asianage

(Meenakshi Ganguly is the South Asia researcher for Human Rights Watch)