From The Hindu (February 11, 2013)
We should worry when a constitutional republic is insecure about letting a man in chains say his final goodbyes
Afzal Guru was hanged in the early hours of February 9. The date of execution was fixed only the previous day, but the authorities chose no quicker means of communication than Speed Post to inform his family in Sopore of the final decision. The clear intention was that they should not be able to meet him one last time. In fact, the idea seemed to be that no one should know, react or protest. Afzal himself was given no chance to challenge the President’s rejection, though it is open to judicial review. Kashmir was under curfew.
A constitutional republic that is insecure about letting a man in chains say his final goodbyes is something that we all need to worry about. Is a state that resorts to secret executions out of fear of demonstrations and protests capable of dealing with the many serious challenges that face this republic? The clampdown in Kashmir and the ill-treatment of unarmed protesters at Delhi’s Jantar Mantar suggests that the greater threat to our democratic polity is posed by the state itself. A vibrant civil rights movement that interrogates the criminal justice system and the death penalty is both necessary and desirable. In trying to respond to a morally bankrupt opposition, and a media campaign of surpassing banality, this government has only revealed its weakness. A state that is paranoid about democratic opposition, but will succumb easily to demands for abridging due process concedes the first round to the terrorist.
Justice synonymous with death
A long tradition of binding the collective to standards that keep it from being on a par with a common criminal has grown not out of any sympathy for crime but out of the wisdom that only in such a way can our collective aspirations be fulfilled. It is not Afzal’s wrongs that must determine whether the Indian republic follows its traditions. Unfortunately, that is what the discourse has been reduced to. Justice has become synonymous with death, and any other punishment is seen as tantamount to letting someone off. Victims of the Parliament House attack are entitled to respect and sympathy, the anger of their families can be understood, but no responsible administration will exalt anger to policy. Enough has been said and written over the years against the death penalty, and yet it remains on the statute book. I can only say that an atmosphere in which penalty is equated with justice is one which will breed more violence. The blood lust that has been demonstrated in the media coverage is sufficient to make the point.
A view has gained ground that our time-honoured norms are soft and conducive to crime. Judicial precedent that frowned upon keeping prisoners for long years on death row and then executing them is today upturned. What can be more degrading to our dignity than diluting our principles to get even with a prisoner, whatever may have been his crime? Scarier still is that our thinking elite is barely aware of the consequences of doing so. Can India be justly proud of saving the Parliament House from terrorists when its might quails at allowing the prisoner’s family a meeting, a personal funeral?
Narrative that causes concern
Afzal, during the trial, did some remarkable things. Once, he interrupted the proceedings to say that a prosecution witness was, in fact, speaking the truth when he said that Afzal had gone along to buy his car. This was the car in which the intruders were supposed to have entered the Parliament complex. Afzal also spoke frankly of his militant years in Muzaffarabad and his voluntary surrender to the Indian authorities. His narrative of how the authorities dealt with him after his return should cause us all concern, if even part of it is true. Though he had set up a small medical equipment business, the army and the State Task Force (STF) wouldn’t just let him be. They kept picking him up, detaining him for long spells of torture, demanding money for his release and so on. It was during one such stint in the STF camp, that he was introduced to Tariq, who in turn got him to bring Mohammed to Delhi. The rest is history, though somewhat blurred history. Afzal gave names of STF officers who were privy to this operation. I would think that the possibility of some truth to this is of much greater significance to national security than Afzal’s life or death in prison. Our misfortune is also that it is easier to attack a soft target than face uncomfortable questions. Why a man who had voluntarily renounced militancy should turn back on the decision is a question that needs to be asked, and the answers will reflect adversely on the Indian state. I have no idea whether anyone in the government took note of Afzal’s allegations.
Faith in the system
Afzal’s cousin Shaukat was convicted and sentenced to death by both the trial court and the High Court. The Supreme Court had not heard the case yet in November 2004, when I met Shaukat’s old father in Sopore. For all the old man knew, his son was going to the gallows. He was a man of few words, and said just this: “No one came to us when Shaukat was arrested, but I saw that a fight was being put up for him in Delhi. Local politicians descended on me after the death sentence was announced but I threw them out. I believe that justice, if it has to come, will come from Delhi. India has a working system of justice that one cannot hope for in Pakistan”. A year later, the Supreme Court acquitted Shaukat of all charges but one. In such a case as this, the Supreme Court ruled out police-recorded confessions and questioned the wisdom of having them in the law at all. In many ways, the verdict restored sanity to a legal system that had been subverted over two long decades by altering due process in the name of fighting terrorism. That is the kind of justice that evokes faith in people like Shaukat’s father and works to stem alienation. That is also the kind of restoration that is destroyed by a state that must stoop to hush-hush executions to prove its strength.
(Nitya Ramakrishnan is a senior lawyer. She defended Shaukat Guru and Afshan Guru in the Parliament attack case from the trial court up to the Supreme Court.)