Hanging of Conscience: Case of Afzal Guru

Ram Puniyani

The semi secretive hanging of Afzal Guru (Feb 2013) has come as a shock to some and as a feeling of triumphalism for many. Afzal Guru was hanged in early hours of morning and was buried in the prison yard. His mercy petition, which was pending with the President for long was finally rejected and even before the family of Afzal Guru could get a chance to appeal against the turning down of plea for clemency, Guru was hanged. While the ethical questions pertaining to death penalty are heavy on the conscience of many in the society, this is not regarded as the part of ‘collective conscience’ which has guided the judgment of Supreme Court and later the President turning down his petition for clemency. The section of society which thought that Guru’s sentence itself needs to be questioned also does not seem to form the’ conscience’ of the nation!

Kashmir valley was totally insulated from the news and TV channels gagged. The restive mood of the people led to the death of some. In the absence of the proper information, rumours are doing rounds and what disastrous consequences it can have needs a serious thought from the rulers in the corridors of power.

 Many a questions have been raised due to this hanging. Why hanging and why at this time?  Guru was one of the accused in the case of assault on the Parliament on 13 December 2001, in which, eight security personnel and one gardener were killed. Guru was not found to be part of any terrorist outfit, nor did he play any direct role in this attack. Supreme Court noted that there is no direct evidence of Guru’s involvement. The evidence was mainly circumstantial. All three courts including Supreme Court had acquitted him of the charges under POTA of belonging to either a terrorist organization or a terrorist gang. Court also noted that the evidence was fabricated.

At worst Guru was facilitator in the crime and not a part of directly perpetrating the crime, and the evidence against him was mere circumstantial and that the police lied about the time and place of arrest, fabricated evidence including arrest memos and extracted false confessions. Court noted that Guru was not a member of any banned organization, Court ruled "The conviction under section 3 (2) of POTA is set aside. The conviction under section 3 (5) of POTA is also set aside because there is no evidence that he is a member of a terrorist organization, once the confessional statement is excluded. Incidentally, we may mention that even going by confessional statement, it is doubtful whether the membership of a terrorist gang or organization is established." Further that since "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." So does it mean that the punishment is being given to assuage the collective national conscience? One must add what is presented as this conscience is the consciousness of the section of dominant sections of society, the assertive social-political groups in particular. The conscience manufactured by the likes of VHP, Bajrang Dal and company, have come to be labelled and accepted as national ‘collective conscience’ by many, It is these groups who are who are celebrating the death of Guru, exhibiting their triumphalism.

In their petition to the President of India, many social activists and academics point out “The fact that the Court appointed as amicus curiae (friend of the court) a lawyer in whom Afzal had expressed no faith; the fact that he went legally unrepresented from the time of his arrest till his so-called confession, the fact that the court asked him to either accept the lawyer appointed by the Court or cross examine the witness himself should surely have concerned you while considering his mercy petition.”

His personal history of being a surrendered militant, victim of harassment and torture at the hands of STF, as well as his statement in open court that he had indeed helped Mohammad, one of the attackers on the Parliament, find a house and obtain a car, the same car used in the attack, but at the orders of his STF handlers, should have spurred a full-scale investigation into the allegations. The citizens of this country do not know if one was ordered at all.”

 The base on which Supreme Court gave the judgment was built by the police with methods which are questionable, which have also been reprimanded by the court in this case. The argument on the other side was that if Guru is not hanged it will be an insult to those who have laid their lives for defending the parliament

While Supreme Court deserves all the respect, one has to see that the primary investigation done by the police, with all its flaws formed the base of the judgment. When that investigation itself had holes in it, should it be accepted as it is presented? When the primary culprits are either dead are some of them absconding, can 'the whole truth be out'? Or is it that somebody has anyway to be punished to quench the thirst for revenge, and who better than the one who has a Muslim name and happens to be from Kashmir. The whole trial of Afzal needed to be relooked; the flaws of the investigation, the weakness of and deliberate violation of norms by police authorities in particular.

The question which comes is why the other assassins, the one’s of Rajiv Gandhi and the Punjab Chief Minister Beant Singh are being given a different treatment? The assemblies of Punjab and Tamil Nadu have passed resolutions against death penalties for these people, who were directly involved with the acts of assassination. The whole issue boils down to as to how Indian state has treated the Kashmir issue and how terrorism and Muslims have been associated in the popular thinking. This thinking has been deliberately promoted by the communal forces in the country. A section of media has played a very negative role in promoting the divisive thinking in the society. Section of media has acted as spokespersons for the police versions of investigation. So the ‘collective conscience’ is the common sense asserted by communal forces and imbibed by the others. It does reflect the state of our democracy overall. Can we call ourselves as a democracy and indulge in minority bashing; being high handed in matters of justice and citizenship rights in cases of the vulnerable minorities.

Kashmir had been limping towards better situation during last few years. While alienation amongst large section of Kashmiris remains deep set, there have been indications that people may reconcile to new situation, if democratization process in Kashmir is strengthened by and by. This hanging of Afzal Guru reminds one of the hanging of Maqbul Butt in 1984, which set the trail for a phase of enhanced militancy. One hopes that such an adverse thing should not happen this time. But still we need to take the issue of protest in Kashmir in a more balanced way. Congress should not join the game of aggressive jingoism launched by BJP and its affiliates. Such cases of yielding to the religious nationalism, promoted by BJP and company will surely be a recipe for disaster for the process of normalization and democratization in Kashmir. The communal mind set should not be allowed to rule the roost.  

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Hanging of Afzal Guru

The Hindu, February 12, 2013

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To Kill or Not To Kill: A Human Rights Perspective on Capital Punishment

Ramesh Nagaragere 

Time was when a king got angry with one of his subjects and said, 'Off with his head' and it was done. Not just that. He would also order the chopped off head to be hung on the walls of the fort. At the gates. The intent was not merely to punish the guilty, whatever be the guilt, but also to prove to the people that the king was all powerful and the same fate would befall them if   they ever dared to go against the king or violate the established practice. The question whether it was humane or not, or just or unjust would never arise. The king’s word was law.

Since then lots and lots of water has flown down all the rivers of the world and it has witnessed remarkable shifts and twists in history. One significant development is the democratization of a majority of nations and the word of the king is no more the law everywhere. Along with this, human life has also gained some recognition and it can not be ended   just because one autocrat thinks a particular individual does not deserve to live. Besides, the world has also seen many wars   which have only resulted in loss of life along with destruction of property. Especially, the two world wars and several ethnic conflicts in different parts of the world   have resulted in premature cessation of human life. This has made nations think in terms of protecting human life at least from individual whims and idiosyncrasies. Consequently several countries have abolished death penalty as a means of punishing their citizens. This is a minor attempt at humanizing and civilizing society.

The efforts of civil societies   and human rights organizations of various countries have succeeded in getting 96 countries so far to decide to abolish capital punishment or legal execution as it could be called. In some countries, India is one of them, it is announced only in ‘the rarest of the   rare cases’. But what are the norms set to decide which is rare and which ‘the rarest’? More often than not, it is the presiding judge who   has to decide   the merits of the case   in the absence of definite guidelines. That means, in the ultimate analysis, the question of life or death of a person depends on the discretion of one individual which could be very subjective and arbitrary at times. An estimate says that 60% of the world’s population lives in the four countries which still have capital punishment in their law books. – India and   Indonesia  where it is resorted to  only in  the rarest of the rare cases and China and America where it is a very common phenomenon.  These four countries voted against a U N General Assembly resolution in 2007 calling on the member-nations to, at least, announce a moratorium on capital punishment which could pave   way, eventually, to abolition. Amnesty International, the reputed internal human rights organization has come out with very useful information on the issue.

Presently,   heated discussions are happening in India especially against the backdrop of the implementation of the   death penalty   already   awarded to Afzal Guru,Kasab and several others. Those   proclaiming the efficacy of the punishment want these people to be hanged soon and   those   who are opposed to death penalty   want it to be converted to life imprisonment. It should be remembered that besides these there are several others including those accused of killing Rajiv Gandhi and a few tribal activists who have been sentenced to death.

The supporters of capital punishment as a legal way of doing justice argue that that is the most suitable punishment for those indulging in such heinous crimes as murder. This, they say, would also make the near and dear ones of the victims of the murder feel ‘satisfied’, feel that justice has been done. More over, they also assert that once such   punishment is   given out in  a few cases, that would be a deterrent to others who might be planning to commit such crimes. Also, the state has to   prove that it is powerful and strong and one way of doing it is using the powers bestowed on it by the law of the land.  As a consequence of this mode of thinking that at the moment the government of India is being dubbed as weak since it has failed to carry out the executions already ordered by the courts.

The Supreme Court of India has decreed that capital punishment could be awarded in cases like murder, murder with the intent of looting, sedition by citizens or members of the armed forces, ‘terrorist’ related crimes, police ‘encounters’, honor killings and others, But even then this sentence could be pronounced only in the rarest of the rare cases, as the highest seat of justice says. The last instance of hanging   was in 2004 when Dhananjay Chatterjee of West Bengal was hanged and since then in quite a few cases death   sentence has been awarded but not implemented yet and one important reason is that   mercy - petitions are still pending with the President of India or the government of India. Obviously it  is bound to take some more time before the actual implementation of the   verdict even if all the petitions for mercy are rejected.

However, there is increasing   pressure on governments in many parts of the world for the cessation of capital punishment and India has also been witnessing this phenomenon. Several human rights organizations have taken the lead in arguing for the abolition of capital punishment.  The effort has now grown into a movement. Killing a person, even   legally, is   negation of   life, they say. On many occasions, people   who had been convicted and sentenced to imprisonment had been found to be not guilty. If these people had been hanged or electrocuted, it would have turned out that they would have been ‘murdered ‘by the system which is meant to protect its members, to   do justice.  Then there are others who argue for abolition on religious grounds. But no religion of importance has taken a clear position on the abolition of death penalty. Even in countries where they profess Buddhism the legal framework has the provision for killing   the accused if found guilty of serious crimes.

One very important question arises here:  how does   the state which normally acts against the interests of the common people   acquire power over the lives of its citizens? For instance, the era of globalization, at least in India,   has seen the government   following   a policy   inimical   to the interests of farmers which has resulted in   suicides by a large number of farmers in many parts of the country.  This   is in spite of the government claiming that   the country has achieved remarkable growth rate  that a considerable section of the people has also been benefited.  Compare this with    a suicide due to coercion by some   in which the abettor is punished. But in   the case of these suicides who is to be held responsible for these deaths which are nothing short of murders? Who is to be punished and   what should be the punishment? Unfortunately these questions remain unanswered.

The argument that capital punishment can act as a deterrent is a myth.  If that were to be true, in countries like China and a few states of the US, by now crime rate should have gone down considerably.. On the contrary, it is reported that crimes in those states of the US, for example, where death penalty is part of the legal system are more compared to the states which have removed this provision from their law-books. Then there is the argument that   by punishing the murderer with death the close relatives and friends of the victim could be made to feel ‘satisfied’. Is it not     position that adds to the revengeful attitude already present in us?  Can a society claiming to   be   civilized afford to do it? In some countries   where Islam is the official religion and Shari at is followed, the culprit can get relief if   the members of the family of the victim decide to spare the life of the culprit: but then it depends on the will of the some individuals and there is no legal compulsion.

All the arguments cited above   in favor of legal execution try to establish that capital punishment is the only way to prevent further crimes and understandably   the general perception in the society is also for capital punishment, at least in our country.  It is so because  there has been no serious effort at building public opinion through concerted campaign and whatever little is being done by human rights organizations here and there has  been met with  very little success or cynicism. 

But if one cares to consider different instances of crimes and the people involved one would certainly be ready to give it a second thought.  For example,  in some cases of ‘terrorism ‘the person who has  committed such an act is prepared to die along with those he or she has planned to kill, some times even innocents.  Such an individual has no consideration either for   the life of self or that of others and for him or her death sentence is no punishment at all.  In death penalty there is nothing like making the culprit ‘experience’ the punishment. On the other hand, if the wrong doer is made to spend the rest of his or her life in prison, that is punishment and there is also the possibility   of such a person   realizing the futility and gruesome nature of the crime and repenting for at least the innocent lives cut short. Then, what is  more meaningful is the effort to identify the social, political and economic  factors  resulting in some people turning out to be ‘terrorists’ and to resolve the issue socially, so that nobody would ever think of committing such acts and that is a mark of civilized governance

Killing, even legally, by the system as a way of punishing offenders only smacks of the tyranny of the system and its unbridled power over the lives of its subjects. That is   for the autocrats   and   an   uncivilized one at that. So much so, the European Union has stipulated that any country wishing to be a member of the organization has to first   take out capital punishment from its justice - system. This is certainly a slow but sure way of moving towards civilized living.   

We claim very often that ours is an  ancient country espousing human values and that the whole world, especially the western world, looks to us for answers when ever they are beset with problems . This much acclaimed’ spiritual superiority’ of India can best be established not just through claims made in internal and international forums  but by  translating into practice  some of the suggestions being   made by the civil society and abolition of capital punishment is one such important  proposal.  Here   in   , we have to admit   that some countries have moved ahead of us and shown themselves in better light. It is not merely the government that has to decide in favor of abolition   of death penalty, but it has to be part of the social consciousness. The Constitution of India stipulates that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” (Part III, Article 21 of Indian Constitution). That needs to be amended so as to remove the provision to deprive a person of his or her life even “according to procedure established by law”. To do that a strong public opinion in favor of abolishing legal execution has to be created and eventually the society or at least the right thinking people should   bring pressure on the government to put an end to this provision.  What is needed now is that one has to put aside all false emotions and subjective considerations and be prepared to apply one’s mind to this intensely human problem. Can one hope to see that day soon?

(Ramesh Nagaragere was the Principal, National College, Jayanagar, Bangalore. He has been associated with the Human Rights Group, Peoples' Democratic Forum, Bangalore)

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