The Supreme Court judgment on the Parliament attack case of December 2001 acquitted S.A.R Geelani and Afsan Guru, while reducing Shaukut Hussain Guru's sentence. However, the High Court's decision to award a death sentence to Afzal Guru has been upheld. As of now, he is to be hanged on October 20 2006 and this decision by the court has had an unprecedented impact on J&K. The final decision on the matter, however, lies in the hands of the Indian President. Of the two viewpoints flagged in the country, one seeks clemency for the accused and the other supports the court's verdict on grounds of national security. This article assesses these two views, the legality of confessional statements made by Afzal Guru and the fairness of the trial under the Indian judicial system.

Massive protests have broken out in Srinagar since the pronouncement of the death sentence, with separatist leaders and political parties demanding a review of the case. The civil society in Kashmir is concerting action with the Society for the Protection of Detainees and Prisoners' Rights, and the Coalition of Civil Society taking the lead. These groups believe that those who masterminded the attack need to be punished before its facilitators. According to the prosecution, Afzal's role was that of a facilitator. Secondly, it is argued that given the limited evidence on Guru's involvement, the death penalty is excessive. They point to an earlier case where Maqbool Bhat, a terrorist for the government but honored as a freedom fighter by an average Kashmiri, was sentenced to death. This led to uproar in J&K . In Afzal's case, due to public outrage and growing political pressure in the Valley, the execution is currently on hold.

Ghulam Nabi Azad, the Chief Minister of J&K, urged the Prime Minister to consider the mercy petition favorably, while the PDP, National Conference and CPI-M support the Kashmiri protestors. However, it is evident that the political parties are using the execution issue to serve their vested interests in vote-bank politics. Yasin Malik led a procession raising pro-azadi and anti-Government slogans. Farooq Abdullah, who had earlier advocated death penalty for all accused in this case tried to regain support in the Valley by supporting Afzal's clemency.

The Congress at the national level disassociated itself from Azad's views and stood against clemency, as did the BJP. The congress, however, does not deny the right to seek clemency The BJP support for Afzal's death sentence is aimed at restoring its credibility with the Hindu masses under the banner of national security. Are such 'political games' in the national interest?

Afzal's confessional statement before the police gave a detailed account of the conspiracy to attack Parliament. He narrated how Masood Azhar, (leader of Jaish-e-Mohammed), at the instance of the ISI, instructed Ghazi Baba, the commander of the outfit in J&K to carry out attacks on important institutions in India. Afzal had arranged for the militants to bring explosives to Delhi, where they met Shaukat Guru, Afsan Guru and Geelani.

According to the final judgment of the Court 'five heavily armed men attacked Indian Parliament and died, and Mohammad Afzal participated in the conspiracy.' Apart from Afzal's account there was no independent evidence available to the government, hence; the conspiracy linking ISI, Masood Azhar, and Ghazi Baba, escaped any judgment. Arguments in favor of Afzal include the fact that the special cell of Delhi Police violated the safeguards for Afzal permitted under the POTA : he was denied legal assistance and taken back to police custody after the confession (SCJ, pp 150-58). Secondly, once he got legal defence, he claimed that none of the lawyers discussed the case with him or cross-examined the prosecution's witnesses. On this basis, a new development took place on 12 October when the Society for Protection of Detainees and Prisoners Rights claimed that the Supreme Court was misled and the petition filed to the President sought a 'fair trial' for Guru and not clemency. Moreover, they asserted that the High Court and Supreme Court had acquitted Afzal of being affiliated with any terrorist group.

According to Afzal's statement, recorded at the Delhi High Court, DSP Dravinder Singh of the Special Task Force forced him to escort one militant to Delhi and get him accommodation. This raises questions about the role of the State Task Force (J&K) with regard to surrendered militants. Even if such a nexus exists, there is enough evidence against Afzal : the purchase of mobile phones for the terrorists, contact with the terrorists minutes before the attack, arranging accommodation and purchasing vehicles and explosive material for the attack.

Amidst this politico-legal debate and alleged militant-police nexus, a full pardon will be unacceptable to the kin and victims of the attack. If clemency is accorded by the President, it has to be based on principles of justice and concern for public welfare. Afzal pleaded guilty to the crime and has not expressed any regret or remorse for those who died in the attack. On the other hand, Afzal's death does not ensure national security or impinge on democratic institutions. Will it not be proper then to abandon a 'kill the killers' approach and substitute death penalty for life imprisonment? Is this not a stronger judicial message to the terrorists' and a step ahead of 'revenge' instead of adding one more name to the list of 'martyrs'?