I have already defined my position on Mohammed Afzal case. But here, I would like to look at few statements used in the judgment.
The Supreme Court says: “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.” (emphasis mine)
We always believe that our Judiciary should uphold constitution and the legal system without getting biased or prejudiced by the opinions of the people or majorities. We believe our penal system is not to punish the offender but to rehabilitate him.
Do we give death sentence to satisfy the collective conscience of the society? Does the convict get a sentence based on the crime or based on what the collective conscience has felt about it?
The Supreme Court says: “As is the case with most of the conspiracies, there is and could be no direct evidence of the agreement amounting to criminal conspiracy. However, the circumstances, cumulatively weighed, would unerringly point to the collaboration of the accused Afzal with the slain ‘fidayeen’ terrorists”. (emphasis mine)
When did we start using circumstantial evidence, however cumulative it is, to be unerring? And when did we start using ‘no direct evidence’ to award a death sentence, which we agree should be awarded in ‘rarest of the cases’?