Afzal Guru’s Execution: Legal Aspects

“Some people don’t like telling the truth, others don’t like hearing it”

On learning about hanging an offender in 21st century, one is transported to 8th or 10th century.  In this century, offenders are not given punishment to put an end to their life but to improve and reform them.  In more than 150 countries capital punishment has been abolished. The thinking among intellectuals is that if a government retaliates with same vengeance as the offender acts, it has no better thinking than that of the offender. Thereby the government commits no less a crime. There can be an error in meting out justice. In the process of evolution nations have done away with capital punishment.

Was Afzul Guru a culprit or not, can be a contentious issue. We shall have a look at its legal aspects. We take into account his interrogation during imprisonment. Radio Pacific Network correspondent Vinod K. Jose had interviewed him in Tihar jail on 19 January 2013. Guru had talked at length about STF Kashmir, BSF Kashmir, 22 RR and Delhi Police. He had also given details of his case to Human Rights and Civil Society organizations. He also said how Delhi police had blackmailed him from time to time. He had not seen his lawyer or his family members for six months. “I saw my family at Patiala House Court but only from afar. I gave names of four lawyers to plead my case. Court judge S.N. Dhengra said they could not plead my case. The lawyer given to me by the court filed many prosecution papers without telling me which were accepted and at the end of the day he began pleading the case of another accused and not mine. The court appointed Amicus quadric. He was not appointed to defend me but to help the court and he never met me. Initially I didn’t have a lawyer available,” is what Guru had told the correspondent.

High Court acquitted S.A.R. Geelani and two more accused but upheld death penalty to Afzal Guru.

No direct witnesses were available in this case from the early beginning. It maintained his death sentence on the basis of circumstances. It was perhaps for the first time that such a high ranking court said this in its judgment:

“The incident which resulted in heavy casualties has shaken entire nation and collective conscience of the society will be satisfied if the capital punishment is awarded to the offender.”

We don’t intend to open any legal commentary on the court verdict but let it be said that more than two hundred intellectuals, writers and film makers wrote to the President of India as this:

“We believe that you made a grave error in rejecting the Mercy Petition of Afzal Guru”. They said that the offender is given the right for judicial review once the Mercy Petition is rejected. Afzal Guroo was denied this right.

1- We don’t think that hanging of Afzal Guroo satisfied the legal stipulations. Congress government has taken political mileage out of it. In the past, whenever BJP demanded Guru’s execution Congress spokespersons took the position that there were more cases. When his case comes up the President would take the decision. His execution, done mysteriously, was suddenly announced on the morning of 9 February 2013. Questions will be raised on Indian democracy, India’s relations with Kashmir and Indian laws. Questions have already been raised. Arundhati has asked 13 questions in regard to attack on Parliament. Question Nos 12 and 13 are as this:

2- Six days after the attack on Parliament, Police Commission of Maharashtra (Thane) S.M. Shangari identified one assailant and gave a statement that his name was Muhammad Yasin Fath Muhammad alias Abu Hamza who was arrested in Mumbai in November 2000 and handed over to Kashmir police. If this statement of Police Commissioner is correct then how could Muhammad Yasin be involved in the attack on parliament? If it is not correct, where is Muhammad Yasin?

3- We still do not know who were the five persons reported to have attacked the Parliament.

4. It was reported that before attack was launched on the parliament, BJP had started deployment of the army and the ruling party was looking for pretexts to begin war with Pakistan. This opportunity was provided by the attack. Keeping this in mind and the statement of Afzal Guru The Martyr, the statement of Maharashtra police and other related factors, it becomes imperative that Indian civil society and international commission conduct an enquiry into this event, It is pertinent to say that owing to the movement of the troops more than a thousand jawans of Indian army got killed and losses ran in billions of dollars.

5. The mercy petition of the murderers of Punjab Chief Minister Beant Singh was pending with the President before Afzal Guru’s petition. Even the Mercy Petition of Tamil assailants of Rajiv Gandhi were also made much before that of Afzal Guru’s petition.  There were other appeals also.

6. Afzal Guru’s Mercy Petition was rejected by the President on 21 January. However, neither Afzal nor his family members were informed about it. For judicial review, Afzal’s family was informed through speed post on 8 February which was received by them on 11 February when he had already been hanged. His family members were not called for the last meeting enabling the dying man to express his last wish. He was suddenly hanged on February 9 and buried in the compound of Tihar Jail. The announcement was made by the Home Minister of India.

Many questions will rise about how Afzal Guru’s execution was conducted so secretly and the family was denied the opportunity of meeting with him and the dead body was not handed over to the family but buried in the compound of the jail. Justice is not only to be done but has to be seen. No justice was done to Afzal Guru rather injustice has been done to him.

Many among Congress opponents and among the opposition believe that Afzal became a victim of politics. BJP was insisting on his execution and Congress obliged. This disarmed BJP in the forthcoming elections. If it was not a political decision then the murderers of Beant Singh and those of Rajiv Gandhi should have been denied their mercy petitions much ahead of Afzal Guru.? Punjab and Tamil Nadu assemblies have passed resolutions that these culprits should not be hanged. This is also one of the reasons why their mercy petitions have not been rejected so far.

Omar Abdullah expressed his reaction on two counts, not allowing Guru to meet with his family members and being informed only 12 hours before the execution took place. He expressed his unhappiness with the centre on these counts. But is that all what is expected from a CM? He was informed a day earlier. Could he not ask for fulfilling human consideration? He could have told the centre to let his family meet with him and delay the hanging by three days. Could not the dead body of Afzal Guru be brought by a helicopter to his village for giving it proper burial? On 9 February Saturday strict curfew was imposed before morning prayers and all internet facilities were cut off. Newspaper, television broadcasts were also locked. It was a march to medieval times for Kashmiris. Youth were detained in police stations, resistance leaders were put under house arrest. In hospitals not only the patients but their helpers too were put to miserable conditions.

We can ask the collective conscience of Indian society how long they would put Kashmiris in jails in order to satisfy their collective conscience. Peaceful demonstrators are fired at, youth are detained and put behind bars and four Kashmiris were gunned down during the course of demonstrations. More than one crore of people were virtually held as hostage. More than a hundred persons have been wounded in J&K during past few days. Guru’s hanging was as sudden as the imposition of curfew. It was the weekend and people would have done shopping. People had not the eatables left in homes.

Condition of patients was worse as if life had come to a halt. Along with Afzal Guru entire Kashmiri community was given punishment. Did India’s collective conscience find solace by imposing curfew for full one week in Kashmir?

Now Geelani Sahib has come out with his own formula. He does not consider seven days of curfew as protest demonstration and gave call for two more days of strike. This is called whipping the dead horse.

A question can be put to the resistant leadership also. It is all right to express condolence and grief on the execution of Guru. But the question is why the resistance movement and its leadership played politics from the very beginning but did not extend legal help to him. If no fewer than four famous lawyers could be engaged for the defence of SAR Geelani, why was not a suitable legal defence made available for Afzal Guroo? In his last interview he had said it was this:

”In the length and breadth of India, Kashmiri youth are facing cases against them without the assistance of any lawyer, any follower and without any legal support. I am worried lest they have to meet with the same fate as I have met with”.

Let me reiterate my question. Can’t all resistance organization come together at least on one point that keeping clear of self-aggrandizement and personal interests, should it not be possible to constitute a defence committee for rendering legal assistance to all those Kashmiri youth against whom cases have been framed?

India rulers claim they want peaceful resolution of Kashmir issue and produce various references like Bajpai’s efforts and Manmohan Singh’s round table conferences or the missions of Panth and Jaithmalani and Vohra etc. Sometimes they put forward the interlocutors. The result of all these efforts is nothing. The chasm of trust deficit between Kashmiri nation and Indian nation is widening day after day. People say all these committees and dialogues are meant to sabotage the struggle of Kashmiris

Indian intelligentsia should try to understand that Kashmiri thinking class is obsessed with the belief that India and all of her institutions are doing injustice to Kashmiris and forcing them to bend their knees. Afzal Guru’s execution has deepened this belief. Martyrdom of Maqbul Bhat gave the Kashmiri youth the spirit of forging unity in the Kashmiri nation and making their land free and independent. Afzal Guru’s execution has shown that Kashmiris will not be able to enjoy the right to protest and freedom of expression in India. They have also begun to question whether Indian courts can do justice to their cause. In other words Kashmiris have lost faith in non-violent struggle and democratic dispensation.

I would like to impress upon the mainstream parties of Kashmir also that unless they commit themselves to be faithful to the Kashmiri masses and consider them the real source of power, the centre will continue to expect servility and circumventing of law from them. We would advise New Delhi with all sincerity that it should apologize to the widow and orphan children of Afzal Guru for not allowing them the last meeting with him and his dead body should be handed over to his kith and kin.

True by burying Maqbul Bhat in the compound of Tihar prison and not allowing Kashmiris to raise a tomb in his memory on their soil, now millions of tombs have been raised in the minds of Kashmiris in memoriam to Maqbul Bhat the martyr. The same will hold true in the case of Afzal Guru. Its consequences would be grave.

Let me reiterate that we condemn attacks as on Parliament House, Assembly House or Taj hotel of Mumbai. Attack on Parliament House which is the symbol of India’s democracy was in no way a right step. It was condemnable. But murdering a human being is the biggest of sins. Hanging of Afzal Guru, the martyr, might have solaced Indian ultra nationalism, but the way he was hanged is not to be found anywhere in the world. The entire world has taken up this execution case to ask many questions from the Hindustan of Gandhiji and the law and democracy of Hindustan.

–Writer is Chairman: Jammu Kashmir Democratic Liberation Party. He can be reached at: [email protected]

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