Wednesday, March 27, 2013

Collective Conscience or Collective Vengeance?

“Sovereignty means the capacity to define who matters and who does not, who is disposable and who is not.” - Achille Mbembe in Necropolitics (Public Culture, Winter 2003 15(1))

I am here to discuss the hanging of Afzal Guru and what we can learn from it. He supposedly masterminded the attack on the Parliament of India in 2001. For this ‘act of terrorism’ he was given death penalty and his mercy petition was rejected by the President. Subsequently he was hanged on 9th February 2013. Some celebrated the day saying justice was at last done whereas some mourned the day as the death of Indian democracy. There are many who think that he deserved to die and many who did not. Initially, I also believed that he deserved to die. But when I started reading about his case and also the judgments, I was shocked at what had happened.

Who was Afzal Guru?
Afzal Guru, a young Kashmiri medical student, influenced by the political climate in the valley in early 1990s, dropped out of college and joined the Jammu Kashmir Liberation Front,(JKLF). Like many others he crossed over to other side of Kashmir. Afzal came back disillusioned because in his opinion Pakistani politicians treated Kashmiris just like the Indians. He voluntarily surrendered to the Border Security Force (BSF) and they issued him a certificate of surrendered militant. Contrary to Afzal’s expectations, as a surrendered militant, he was constantly picked up, harassed, agonized and threatened by security agencies like Army, BSF, and State Task Force (STF). This continued despite his efforts to settle down; start his own business, get married and lead a “normal” married life. Once he was picked up and put in Humhama STF torture camp. Inspector Shanti Singh electrocuted Afzal till he agreed to pay a bribe of Rs. 1 lakh. After this incident he was both mentally and financially broke. He had to take medical treatment to heal injuries and to regain his potency. It was then that he realized that it was better to cooperate with the STF and pay bribes in order to avoid torture.

What landed Afzal in trouble?
It all started when DSP Davinder Singh of the STF asked Afzal to do a “small” job namely, take a man to Delhi and find him a rented place. This man was later identified as Mohammad, one of the gunmen who attacked the parliament. Mohammad visited many people before the attacks in Delhi and also offered Afzal Rs. 35,000 as a gift. Afzal left for Srinagar after taking the money. Before he could board the bus to Sopore, he was picked up from Srinagar bus- stand. He was later on transferred to STF headquarters and later to Delhi. In Delhi, Afzal was kept in the ‘torture chamber’ of the Delhi Police Special Cell. He was, as per a number of sources, tutored to say that he, Shaukat, his wife and SAR Geelani were the people behind the attack on the Parliament. The police threatened and tortured him and used his family’s security to browbeat him into accepting the charges. The Special Police created evidences by taking him to different places and markets that Mohammad had visited. He was also made to sign some 200-300 blank pages.

Why was Afzal picked up?
 On the 13th of December 2001, five heavily armed militants (terrorist) stormed into the Parliament complex. They opened fire indiscriminately and killed 9 people and injured 16. The terrorists were killed after 30 minutes of gun battle. Just before the attack, it was alleged that the militants got in touch with Afzal over mobile phones and instructed him to find out the presence and the location of the VVIP’s inside the parliament.

A‘comprehensive investigation’and conviction?
The investigation of the Parliament attacks was completed in 17 days flat by the Special Cell of the Delhi Police. This shows the government’s inclination to fast track the case. Twelve people, including the five who were earlier shot dead during the Parliament shoot-out, were deemed to be the main accused. Gazi Baba, Masood Azhar and Tariq, the alleged masterminds were never arrested. Gazi Baba was shot dead in an encounter in 2004. Only four, Afzal Guru, his cousin Shaukat Hussain, Shaukat’s wife Afsan Guru and SAR Geelani, Teacher of Arabic in Delhi University, were arrested. Afzal alone was tried under Prevention of Terrorist Activities Act (POTA). While filing the charge sheet some of the important evidences were not included. According to Afzal, “If phone number records … (had been) seen carefully the court would have come to know the phone number of STF. I was not given chance in the designated court to tell the real story,”

When the case was in the session’s court Afzal did not get a fair trial. To start with he did not get a lawyer to fight his case because he was poor to pay the required fees. The five lawyers whom Afzal named were not willing to represent him. The court appointed lawyer Neeraj Bansal did not meet Afzal before he represented him. The prosecution based their argument on Afzal’s confession. There were no direct evidences against him. Witnesses of the prosecution never alleged that Afzal was associated with or belonged to any terrorist organisation. According to Nandita Haksar, Bansal did not cross-examine even the crucial witnesses adequately enough; this included Inspector H. S. Gill’s, on whose testimony Afzal was given death sentence. Special Court Judge, S. N. Dhingra clearly showed his bias to the investigative agency. This is clear from his statement: “There is no reason to disbelieve the testimony of any of the police officers as none of police officers were having any kind of enmity against any of the accused persons”. He had similar observations about the other witnesses who testified against the accused. Justice Dhingra justified the violation of rules, regulations and procedures by the police by referring to the seriousness of the offence. Hence he denied the accused his rights under the law. When the case went to the Delhi High Court it was a referred case. The main damage was done when Afzal was presented to the media for a televised nationwide ‘confession’. The court castigated the investigators for doctoring the evidences and making Afzal sign blank papers. Despite these observations, “the courts did not pass any strictures against the officers for their shoddy and illegal investigations,” says Nandita Haksar. The High Court refused a retrial. The right to be defended by a lawyer is not only a Fundamental Right but it is a guarantee under the International Covenant on Civil and Political Rights and India is a party to it. Article 21 deals with right to be assisted by counsel from the time of arrest and during the trial. Article 22 (1&2) and 39 A deals with equal justice and frees legal aid. The proceedings in both the trial court and the High Court clearly show violations of fundamental and constitutional rights.

When the review petition reached the Supreme Court, it made the following observations: “Taking an overall view of the assistance given by the court and the performance of the counsel, it cannot be said that the accused was denied the facility of effective defence”. “Criticism against the counsel seems to be an afterthought raised at the appellate stage” (SCJ, p 139). So the question is where else could it be raised and who could have raised it at the trial stage? It acquitted Afzal from the charges of belonging to a terrorist organization. No evidence was produced by the prosecution to establish Afzal’s link with any banned outfit. The Court rejected the media confession because it found that it was extracted by torture. The Supreme Court acquitted Afsan Guru, G.A.R Geelani and sentenced Shaukat Hussain to ten years in rigorous imprisonment. In case of Afzal the Supreme Court upheld the Delhi High Court’s judgment and referred it to be a ‘rarest of rare’ case, sentencing him to death. The Court said: “The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender.” It is unfortunate that the Supreme Court also succumbed to the common emotion of retributive justice. Afzal’s wife, Tabasum filed for a mercy petition with President A.P.J. Abdul Kalam. The Delhi government rejected the mercy petition and endorsed capital punishment by the Supreme Court to Afzal. Afzal wrote to the Supreme Court requesting to be shifted from Tihar jail to Srinagar Central Jail. Only the government could address the grievances about the transfer, since the Supreme Court had rejected his appeal. The government refused his requests.

The hanging of Afzal Guru got more steam after Kasab was hanged. After Kasab’s hanging the Union Home Minister examines Afzal Guru’s file, President Pranab Mukherjee rejected his mercy plea on 3 February 2013. Afzal was subsequently hanged on the 9th February 2013 in Tihar jail and buried there. The manner in which the entire episode was dealt raised far too many uncomfortable questions.

To start with once the mercy plea was rejected, the government should have informed the family. Afzal could have appealed to the Supreme Court asking reasons for the rejection of his mercy plea. The government decided to hang Afzal in complete secrecy on the 9th February. To make matters worse, as Union Home Secretary, R.K. Singh told journalist: “His family was informed about the decision of the government to reject his mercy petition… This was done through Speed Post,” From all accounts the letter was sent out to his family in Srinagar on February 8, 2013. The family was not even consulted about the burial. At least after hanging the body could have been given to the kin. The government took decision to bury him next to Maqbool Bhat in Tihar Jail. The family of Afzal Guru has been pleading to get his body back; however the government does not seem to act upon that request His hanging had brought some unity among the political class. Politicians were in praise of the Union governments decision.Many were quoted saying something on the lines of ‘justice was done at last’, ‘it was the victory of democracy’, ‘nations conscience was satisfied’ etc. Many people were celebrating and distributing sweets. Immediately after his hanging, many activist in Delhi protested silently against the hanging in Jantar Mantar. The police watched and participated while young and brave University students, several of them Kashmiri, were beaten up. Respected civil liberties activists, lawyers, and even journalists were abused, kicked, beaten, and their faces blackened. It is believed that it was primarily the right wing Hindutva groups that carried out this act of violence.

Curfew was clamped upon Jammu and Kashmir; it lasted for about 5 days. In his last letter Afzal says, “I am about to be hanged. Now, near the gallows, I want to tell you (family elders) that I was not given enough time to write a detailed letter. I am thankful that Allah chose me for this sacrifice. And please, take care of Tabasum and Galib,”

Several questions that one needs to ask: Why was the news of mercy plea rejection not informed to the family? Why was Afzals family not informed about the date of the hanging? Does the government have any responsibility to deliver messages via speed post? Is it democracy when the state is put under curfew because one Kashmiri was hanged? I don’t know if this government can or will reply any of these questions. I do feel ashamed by what my ‘representatives’ have done. It is not the day we have upheld democracy, but have simply failed it.

To conclude, with three of the “estates of democracy” surrounding him, Mohammad Afzal had little chance of escaping the hangman. As Nirmalangshu Mukherji had noted rather prophetically: “as the noose tightens, Afzal will die in silence.” That is what seems to have happened. However, the protests from various sources hold some promise. By: Ashwin Parthasarathy (University of Mumbai Student - Department of Civics and Politics)

Re-posted with permission

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