Rejected Afzal Guru’s mercy plea on government’s advice: Pranab Mukherjee

Updated: Oct 20, 2017 22:18 IST

Aurangzeb Naqshbandi

Hindustan Times, New Delhi

Former president Pranab Mukherjee said on Friday he rejected Parliament attack convict Afzal Guru’s mercy petition on advice from the government as he could not have assumed the role of the court which had already considered the death sentence at various stages.

Mukherjee, who is against the continuation of the death sentence, also insisted that it was for lawmakers to amend the law and abolish capital punishment, which is in the Indian Penal Code. During his tenure from 2012 to 2017, Mukherjee rejected 30 mercy pleas. “Before a mercy petition comes to the President, it passes through various stages and different actions had already been taken. The President goes by the advice of the government,” he told HT in an interview. “If the government advises rejection of the mercy petition, the President naturally will go by that. The President cannot assume the role of the court which had already considered the death sentence at various stages.”

Ex- Indian President Pranab Mukherjee (2012 - 2017)

A trial court sentenced Afzal, then studying medicine, to death on December 18, 2002, for his role in the terror attack on Parliament on December 13, 2001. The Delhi high court later confirmed the sentence, which was upheld by the Supreme Court in 2004. The sentence was to be carried out on October 20, 2006 in Delhi’s Tihar Jail, but a mercy petition by the family to the President stayed it. Guru was finally hanged in Tihar Jail on February 9, 2013 after Mukherjee rejected his mercy petition on February 3 that year. “I did not believe in keeping the files without taking any action. I disposed them off and accepted the government’s recommendations to reject mercy petitions except in 1 or 2 cases where I discussed with the then home minister and both of us agreed on commuting the death sentence. Rest all, I confirmed,” he said.

Afzal Guru, executed 09 February 2013

Speaking about Kashmir, he said the situation “definitely requires undivided attention” of all those concerned. “We were able to manage the situation during UPA-I and UPA-II. Similarly, this government is also making efforts. Let us see how the situation develops and how problems are resolved.” “More than often the secessionist elements take advantage by constantly launching agitations but we shall have to resolve the issue with the cooperation of the people and the government in Jammu and Kashmir,” he added. Asked about the revival of Congress, he said the party has the “capacity to face the situation, tackle adversities and come out with ideas and principles”. “...whenever there is crisis the party had the capacity to overcome that. I have no doubt that Rahul Gandhi and other Congress leaders and workers will be able to overcome the crisis and Congress will play its own role.”

Source: https://www.hindustantimes.com/india-news/rejected-afzal-guru-s-mercy-plea-on-government-s-advice-pranab-mukherjee/story-8Y6pgE86jbtQz4kk3OoKPL.html (Accessed 23 December 2018)

Jammu and Kashmir shutdown on Afzal Guru's death anniversary (Kashmir)

Reuters New Delhi, 

Feb 09, 2017, 07.25 AM (IST) 

Separatists on Thursday called for a shutdown in the Indian state of Jammu and Kashmir on the death anniversary of Afzal Guru, who was executed for his involvement in the 2001 parliament attack case.

On December 13, 2001, five gunmen stormed the Indian parliament complex in New Delhi, killing nine people, mostly policemen, before themselves being gunned down. Guru, who was held guilty in the case, was given death sentence by a Delhi court on December 18, 2002, after being convicted of conspiracy to attack parliament and waging war against the country and murder. On Thursday, security was stepped up in Srinagar city to prevent any untoward incident and authorities imposed restrictions in sensitive areas of the volatile province.

Afzal Guru, executed on 9 February 2013

Markets remained shut and vehicles largely stayed off the roads as majority of the residents chose to stay indoors. Guru was convicted of helping organise arms for the gunmen who carried out the attack and a place for them to stay. He always maintained his innocence. President Pranab Mukherjee had rejected a mercy petition from the Kashmiri and he was hanged in Tihar jail in New Delhi on February 9, 2013. India blamed the parliament attack on Pakistan-backed militants, targeting the prime minister, interior minister and legislators in one of the country's worst ever militant attacks.

Pakistan denied any involvement and condemned the attack but tension rose sharply and brought the nuclear-armed rivals dangerously close to their fourth war. Nearly a million soldiers were mobilised on both sides of the border and fears of war only dissipated months later, in June 2002.

Source: https://www.wionews.com/south-asia/india-jammu-and-kashmir-shutdown-on-afzal-gurus-death-anniversary-12202 (Accessed 23 December 2018)

Mirwaiz Umar Farooq slams death sentence to Kashmiri youth (Kashmir)

By PTI |Srinagar |Updated: January 23, 2017 8:03:35 pm

"The verdict of a trial court of West Bengal, awarding death sentence to Muzaffar Ahmad Rather of Jogipora, Kulgam (in south Kashmir) after being in jail for 14 continuous years is against the internationally accepted norms of justice and fair play," he said in a statement at Srinagar. 

The West Bengal court’s verdict awarding death sentence to a Kashmiri youth after being in jail for 14 years is “against the internationally accepted norms of justice”, Moderate Hurriyat Conference chief Mirwaiz Umar Farooq said on Monday. “The verdict of a trial court of West Bengal, awarding death sentence to Muzaffar Ahmad Rather of Jogipora, Kulgam (in south Kashmir) after being in jail for 14 continuous years is against the internationally accepted norms of justice and fair play,” he said in a statement at Srinagar. His reaction came after three Lashkar-e-Taiba militants, including two Pakistani nationals arrested by BSF in 2007 from the Indo-Bangladesh border at Petrapole, were on January 21 sentenced to death by the court in Bongaon in West Bengal’s North 24-Parganas district in a case of waging war against the government. They were arrested by BSF while trying to enter India through its international border with Bangladesh at Petrapole on April 4, 2007.

The West Bengal court’s verdict awarding death sentence to a Kashmiri youth after being in jail for 14 years is “against the internationally accepted norms of justice”, Moderate Hurriyat Conference chief Mirwaiz Umar Farooq said on Monday. (Source: AP Photo)

The separatist leader claimed that Rather had been “targeted for being a Kashmiri”. “Indian judiciary had displayed miscarriage of justice in cases of Kashmiris earlier and this was yet another addition to this long list,” Mirwaiz said. He also called Rather’s parents over phone and expressed solidarity with them, asking them not to feel alone in this hour of difficulty, the statement said. In a separate statement, hardline Hurriyat Conference chairman Syed Ali Shah Geelani expressed “deep concern” over the pronouncement of death sentence to Rather. 

Muzaffar Ahmad Rather of Jogipora, Kulgam (in south Kashmir) awarded death sentence in West Bengal

“Judiciary was thought the last resort for justice but instead they are acting as a tool for injustice. Indian judiciary has never delivered justice when it comes to people of the state (Jammu and Kashmir) and their decisions and rulings are always influenced by biased approach and politics,” he alleged. Geelani said the death sentence was “mockery of justice” and people of Jammu and Kashmir never “reposed faith in Indian judiciary” as they have witnessed how “these institutions were influenced in (Parliament attack convict) Afzal Guru’s case. Guru, a resident of Sopore township of north Kashmir, was hanged in Delhi’s Tihar jail on February 9, 2013.

Afzal Guru, a Kashmiri executed on 9 February 2013 at Delhi Tihar Central Prison

Geelani alleged that Kashmiri youth, arrested outside the state, were convicted and implicated on fake allegations and “even legal consultation or assistance is not provided and hence the verdicts declared by court are full of flaws.”

Source: https://indianexpress.com/article/india/mirwaiz-umar-farooq-slams-death-sentence-to-kashmiri-youth-4488173/ (Accessed 23 December 2018)

Why I have Spoken Now on Afzal Guru's Hanging

(Dr. Shashi Tharoor is a two-time MP from Thiruvananthapuram, the Chairman of the Parliamentary Standing Committee on External Affairs, the former Union Minister of State for External Affairs and Human Resource Development and the former UN Under-Secretary-General. He has written 15 books, including, most recently, India Shastra: Reflections On the Nation in Our Time.) It doesn't take much to stir up a controversy in our media. As I've learned repeatedly, a simple tweet is often enough. Asked by a tweeter what I thought of the statement issued by five Congress MLAs in Jammu and Kashmir in which they described the hanging as a "mistake", I replied to the questioner: "I think the hanging was both wrong & badly handled. Family should have been warned, given a last meeting & body returned." 

This resulted in a veritable paroxysm of outrage on television and a couple of thousand hate tweets in response, accusing me of everything from molly-coddling terrorists to treason. The debate is taking place on the second anniversary of Afzal Guru's hanging, which has occasioned protests all over the Kashmir Valley, at a time when the process of government formation in the state is yet to be concluded. The Kashmiri Congress legislators, in their statement, had said, according to ndtv.com: "The demand for clemency for Guru was justified and his mortal remains should be returned to his family. The decision to not allow his family members to meet him one last time was also a mistake." This was portrayed by the media as an exercise in winning the support of an independent MLA, Engineer Rashid, for the Rajya Sabha candidacy of Leader of the Opposition Ghulam Nabi Azad, and did not occasion half as much of an uproar as my own seeming endorsement of it a day later. 

If I felt this way, some have reasonably asked, why did I not say so publicly when it happened two years ago and I was serving in government? Simply put: I was not free to do so. I was a Minister of State in the Human Resources Development Ministry, and my work had nothing to do whatsoever with that of the Home Ministry, which handled such matters. It would have been a severe violation of governmental norms to express a divergence of opinion on matters concerning any other colleague's portfolio. A statement by a Minister of State for Home publicly challenging a decision of the HRD Ministry would have been just as inappropriate. Since I had nothing to do with the Afzal Guru decision and was involved in no official forum where I could have participated either in making the decision or in discussing it formally afterwards, I kept my views to myself, expressing them at the time only in private conversation. India is a country of laws; no one can argue that the legal process was not fully followed, all the way up to the Supreme Court. It is indeed true that it was only after all judicial processes had been exhausted that Afzal Guru was hanged. 

It is not my place to question the judgement of the Supreme Court - nor, for that matter, that of the President of India, in refusing to grant the clemency that was sought on Afzal Guru's behalf. Whether Guru's actual role as an accomplice - not one directly responsible for the assassinations of our fourteen martyrs in the Parliament complex - warranted the death penalty is also not a matter for individual citizens to determine. Those who, under our Constitution, are competent to make this decision have made it, and I don't challenge their right to do so either. However, while we are on the subject, it is not irrelevant to raise the issue of whether the continued use of the death penalty reflects well on us as a society. Since my days in the United Nations, I have been a considered critic of the death penalty, and in this I reflect the view of a majority of the world's peoples. United Nations General Assembly resolution 62/149 of 2007 calls on States that maintain the death penalty to suspend its use, establish a moratorium on the use of the death penalty with a view to its abolition, and in the meantime, to restrict the number of offences which it punishes - and to respect the rights of those on death row. 

The resolution has subsequently been repeatedly reaffirmed by overwhelming majorities, and UN Secretary-General Ban Ki-Moon, echoing his predecessor Kofi Annan, has declared as recently as July 2014 that "the death penalty is a cruel and inhumane practice" that "has no place in the world of the 21st century." In Ban's words, "The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process" - a view I happen to share. But let's not go there either: I can just imagine our denizens of the right, especially on social media, frothing at the mouth to denounce the very notion that liberal international pieties can apply to the grim fight against terrorism on our soil. What about the rest of my objection? Afzal Guru was hanged without his family being notified beforehand; his wife and young son were not given an opportunity to meet him for one last time before his execution; and his body was not returned home for burial. Every one of these is standard procedure in the many other cases where India has carried out a sentence of death. Not adhering to these well-established practices was wrong, not just because it hurt the sentiments of Guru's family, but because it was violative of our own values as a society. In behaving the way we did, we betrayed ourselves -- as a nation, a society and a civilization. I am sure various arguments can be adduced for these actions. 

The notification to the family was sent in the usual way, but reached them two days after the execution had been carried out. No meeting was possible since the decision to proceed with the execution was taken swiftly once the President had rejected clemency and before the family had applied to see him. The body was not returned for fear of creating unrest in the Valley and allowing his grave to become a potential locus for future separatist agitation. I understand all these arguments: in my view they are just not good enough to override our duty to ourselves as custodians of India's civilizational values. Former Prime Minister Vajpayee once declared he intended to deal with Kashmiri separatism on the basis of insaniyat - humanity. Did our conduct reflect our own insaniyat? Or has our outrage at terrorism led us to something closer to insanity? I am a strong advocate of counter-terrorism, while stressing that it must not become an all-embracing concept that is used to cloak, or justify, violations of human rights. 

Indeed any sacrifice of fundamental freedoms in the struggle against terror will ultimately be self-defeating. As my old boss Kofi Annan used to say, those who are willing to give up liberty for security will end up with neither security nor liberty. In India's democratic society there are roadmaps for non-violent dissent. Power relations between ethnic, linguistic and religious groups and the State are mediated by the rule of law. When some people dissent, and even resort to violence, there are mechanisms to deal with them justly. And the system offers hope for change -- and the means to change --without the need for violence. In all this, it is vital to respect human rights. As understandable fear and suspicion dominate the law-enforcement response, human rights, the presumption of innocence, the rejection of religious or ethnic stereotyping, must not be jettisoned in the war against terrorism. The response to terror must not place in jeopardy all the hard-fought civil liberties and protections that have come to distinguish Indian civilisation and that are enshrined in our Constitution. 

As Mahatma Gandhi used to say, you judge a society by the way it treats its weakest members. No one is weaker or more powerless than a hapless prisoner on death row. That is why the State, in a final gesture of decency, treats him humanely, allows him to see a family, receive a priest's benediction, and choose his own last meal. These may make little difference to a man who is about to be hanged, but they show us as a decent nation, capable of compassion even while carrying out the ultimate punishment. India has years of experience of dealing with terror without undermining the very values the terrorists seek to destroy. We must ensure that in attacking terror, the cure does not become worse than the disease. Building human rights safeguards into our counter-terrorist strategies and conduct is absolutely essential. The very fabric of India's democratic governance rests on the rule of law. It is vital that our war on terror not become a war against justice, liberty and decency, but rather a war to preserve justice, liberty and decency for all. 

And I say this for India's sake, not for Afzal Guru's. 

Disclaimer: The opinions expressed within this article are the personal opinions of the author. NDTV is not responsible for the accuracy, completeness, suitability, or validity of any information on this article. All information is provided on an as-is basis. The information, facts or opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same. Story First Published: February 10, 2015 13:03 IST 

Source: http://www.ndtv.com/opinion/why-i-have-spoken-now-on-afzal-gurus-hanging-738427 [last accessed 12.02.2015]

Afzal Guru's hanging 'wrong', Shashi Tharoor tweets

TNN | Feb 9, 2015, 04.39 PM IST

NEW DELHI: In remarks which are likely to stir a controversy, Congress leader Shashi Tharoor on Monday termed Parliament attack convict Afzal Guru's hanging as "wrong and badly handled". Afzal Guru, who was handed a death penalty in the 2001 Parliament attack case, was hanged on February 9, 2013. "I think the hanging was both wrong & badly handled. Family should have been warned, given a last meeting & body returned," Shashi Tharoor, a Congress MP from Kerala, tweeted on Monday. Tharoor's comments come after five Congress MLAs in Jammu & Kashmir admitted in a signed statement that Afzal Guru's hanging was a "mistake."

"The demand for clemency for Guru was justified and his mortal remains should be returned to his family. The decision to not allow his family members to meet him one last time was also a mistake," the statement read. Meanwhile, several separatists leaders were detained or put under house arrest and prohibitory orders clamped in the city in the wake of protests called by them on the second anniversary of Afzal Guru's execution. Supporters of the Awami Ittihaad Party (AIP) shout slogans during a protest in Srinagar on February 9. Curfew-like restrictions were imposed in Safakadal, Maharaj Gunj, Khanyar, Rainawari and Nowhatta police station areas in the old city and Maisuma police station area in the commercial hub of Lal Chowk.

Source: http://timesofindia.indiatimes.com/india/Afzal-Gurus-hanging-wrong-Shashi-Tharoor-tweets/articleshow/46174764.cms [last accessed 09.02.2015]

Is India preparing to hang an innocent ‘untouchable’?

N. JAYARAM 26 November 2014

Should the court rule against Koli and were he to be hanged, it would be the second consecutive execution in India of a most likely, or almost entirely, innocent person. Surinder Koli is a member of a Dalit, or oppressed (formerly known as ‘untouchable’), caste in imminent risk of execution for horrific crimes he may well not have committed.

He has been convicted of murdering a 14-year-old named Rimpa Haldar based entirely on his confession obtained under torture some two months after his arrest in December 2006. His confession statement, which mentioned several other murders, mutilation, cannibalism and worse, specifically stated that he was tortured and tutored during detention.

In most civilised jurisdictions, confession under torture is automatically ignored. The Indian Evidence Act bars a confession made due to inducement, threat or promise. Moreover the Supreme Court of India has ruled against it, also observing that prolonged custody prior to a confession is sufficient to deem it involuntary. There is no other evidence against Koli than his confession under torture during detention by the Central Bureau of Investigations (CBI).

Moreover, Koli’s confession details stretch credibility. According to his repetitive and near identical statements, all the killings took place during the day in Moninder Singh Pandher’s house where Koli was a domestic servant. He carried out the killing in the drawing room, stripped the clothes off, carried the bodies to the bathroom to be mutilated, got to the kitchen and cooked and ate some body parts. Some hours later he would clean the house. Not once did anyone surprise him in the acts, nor observe them.

Fifteen more cases are pending against Koli – 11 in the trial court stage and four in the appeal stage in Allahabad High Court in the state of Uttar Pradesh. He was poorly represented by legal aid lawyers whereas his employer Pandher, who was also convicted in the Rimpa Haldar case, went from death penalty to outright acquittal by the high court.

The killings and mutilations took place in Nithari village close to New Delhi but in the jurisdiction of Uttar Pradesh. In 2007, India’s Ministry of Women and Child Development (WCD) set up an expert committee of senior officials to look into the “Nithari Killings”. The committee made a damning indictment of the investigations by the police and the CBI (thus raising serious doubts about Koli’s role in the killings). The committee noted scientific information supplied by a senior medical expert, Dr Vinod Kumar, MD, who had carried out autopsies and who pointed out that the middle parts (torsos) of all the bodies were missing, giving rise to the suspicion that they were being used in the organ trade.

Dr Vinod Kumar noted the surgical precision with which they had been handled. He disfavoured the theory of cannibalism as that could have been a ruse to divert attention from the organ trade. In its report, the WCD committee cast doubts over the prosecution theory about the motive for the killings and noted its failure to investigate the organ trade trail. The house next to the one where Koli worked was occupied by a Dr Naveen Chaudhury, who had been charged previously in a case of organ trading.

The WCD report was never given to Koli’s lawyers or to the trial or appeal courts. Dr Vinod Kumar’s observations would have had a crucial bearing on the case against Koli. The prosecution failed to examine his report, record his statement or call the autopsy surgeon as a witness. A highly unusual lapse in a murder case.

Moreover, the WCD report pointed out that there was no pattern in the choice of victims which is generally the hallmark of serial killers: the victims were both male and female and ranged in age from three to young women. The method of disposal of the body – around the house in broad daylight – seems not to have aroused the courts’ suspicion. Crucial witnesses such as other employees of Pandher were never called. Koli’s guilt, in other words, has never been provenbeyond reasonable doubt.

Assuming for the sake of argument that Koli did indeed do what his confession statements claim, he needs psychiatric and medical help, not the hangman’s noose. Sparing mentally ill convicts the death penalty is the least amount of decency that retentionist states can show. The Supreme Court, while dismissing Koli’s review petition on 28 October 2014, was reported to have said that “in future the trial court will ensure that the accused in other cases by given proper legal assistance by a lawyer of expertise and who can devote time,”. How absurdly bizarre is that? It amounts to saying: you have a point that Koli was not given proper legal representation but we’ll nevertheless let this poorly represented chap hang even if he’s innocent as he claims to be.

Following the Supreme Court’s unfortunate decision, the People’s Union for Democratic Rights went back to the Allahabad High Court, seeking commutation to a life sentence on the ground that there had been considerable delay in his case. The court originally set 25 November to hear the government’s response but as that had not been submitted in time, will now hear it on December 1.

Should the court rule against Koli and were he to be hanged, it would be the second consecutive execution in India of a most likely, or almost entirely, innocent person. In February last year, a Kashmiri named Afzal Guru was hanged in secret and his body buried inside the jail without informing his family beforehand in connection with the 2001 attack on the Indian parliament. The Supreme Court had almost conceded there was little merit in the case, but said: “The collective conscience of the society will be satisfied only if the death penalty is awarded to Afzal Guru.”

India’s political class, judiciary, police and prosecution are packed with members of upper or oppressor castes as is the media. Inside Indian jails, it is the Muslims, Dalits and Adivasis (indigenous peoples), who make up the majority. Officials and media people from upper classes and castes have little sympathy for the latter. The Supreme Court’s callous dismissal of the review petition by Koli, an indigent Dalit, and its abominable verdict in the Afzal Guru case are but two examples.

Equally crucially, if Koli were to be hanged, a possible witness in what the report of the committee constituted by the Ministry of Women and Child Development points to a much larger criminal network would be lost forever. The Pandhers and their neighbours can sleep in peace, basking in the caste, class and communal prejudices of the institutions that fail(ed) to bring them to justice.

Is that what a country that preens itself as the world’s largest democracy is all about?

Source: https://www.opendemocracy.net/openindia/n-jayaram/is-india-preparing-to-hang-innocent-%E2%80%98untouchable%E2%80%99 [last accessed 06.02.2015]

Rajiv's killers: NDA move may bring sanity to the death penalty debate

by R Jagannathan Jul 25, 2014 22:06 IST If the execution or commutation of a death sentence is not to remain a political football, it is clear that the current process is simply untenable. The NDA government has raised an important question on the issue: can the release of a convict be something that is only between him and the government? If this idea is taken to its logical conclusion, it will balance and bring sanity to the death penalty debate. According to this Times of India report, Solicitor General Ranjit Kumar this week asked the five-judge Supreme Court bench which is hearing the case for freeing the killers of Rajiv Gandhi a pointed question: “Should the relatives of those killed in the blast (that killed Rajiv and 17 others) be not permitted to challenge the Supreme Court's decision to commute the death sentences of the condemned prisoners? Would it be correct to decide the issues relating to (the) remission granted to prisoners, whose death penalty had been commuted to life imprisonment, be decided merely on an application made by the convict to the government?” 

 This is a great question, and, in fact, is the missing link in questions about the death penalty. It is also vital to reducing the element of political arbitrariness in the execution of death penalties, their commutation, et al. In 2012 and 2013, Ajmal Kasab, the Pakistani terrorist who was part of the 26/11 attacks in Mumbai, and Afzal Guru, who was convicted for the December 2011 attack on parliament, were hanged after long delays. The Congress-led UPA, which had been dithering all along, confirmed the executions – one suspects – largely to show it can be tougher than Narendra Modi, then emerging as the real challenger to the UPA. 

Kasab was executed just ahead of the Gujarat assembly elections, and Afzal Guru a few months after that – just as the BJP was seeking to make Modi the prime ministerial candidate. But then a strange thing happened. Several other convicted assassins – Santhan, Murugan and Perarivalan, all convicted for the killing of Rajiv Gandhi, and Balwant Singh Rajaona, convicted for the assassination of former Punjab CM Beant Singh – were spared the noose. And last year, the Supreme Court commuted the death sentence on Rajiv’s killers on the plea that by delaying their executions so much, an injustice was done to them and their families. It is clear why Kasab and Guru went to the gallows and why Rajaona and the Rajiv’s killers did not – the former did not have strong political backing, while the latter two had political godfathers in the Punjab and Tamil Nadu governmentswhich moved to save them from the gallows (allegedly in deference to public sentiment). And after the Supreme Court commuted the death sentences of Santhan, Murugan and Perarivalan, Tamil Nadu Chief Minister J Jayalalithaa hastily announced a decision to let them go free. This blatantly political act forced the Supreme Court to stay their release last April, and in the process new ideas are coming to the fore — as evidenced by the Solicitor-General’s posers to the Supreme Court bench, which is headed by Chief Justice RM Lodha. Thus far, those who want to abolish the death penalty have been focusing too much attention on the convicts and their families, thinking little about the families of the victims. But if death sentences and their commutation, and even the release of convicts, can be decided without any reference to the real victims — the families of those affected by the acts of killers — how can justice be said to be done? Revenge and the need for punishment of criminals is not just about the state doing its bit. It is also about bringing closure to the families of the victims as well. In the Rajiv Gandhi assassination case, it was not only Rajiv who got killed in the blast set off by LTTE suicide bomber Dhanu. Seventeen others, including policemen, were killed and scores injured. Their families have suffered. How can the law presume that the agony of a killer’s relatives is greater than that of the families of the people they killed, maimed or injured? If delay in carrying out a death sentence is agony for the former, it is doubly so for the victims. A killer freed may make his family celebrate, but can the families of the victims feel happy about this? The Solicitor-General has done well to bring parity to the process of accepting or rejecting mercy pleas. 

A formal structure to obtain the inputs of the families of the victims is vital to the process of justice. There are several good and practical reasons why victims’ kin must be brought into the picture. One, it makes for a better form of closure. If the families of the victim are willing to forgive and forget, any commutation will carry more moral weight. If not, they are merely abiding by the court’s final decision. Two, by giving the families a say, many such decisions can be taken out of the ambit of politics. In the Rajiv killers case, while politicians are seeking brownie points by pretending to feel for the convicts and their cause of Tamil Eelam, the real victims – the families of the 17 others killed – were simply left out of this empathy process. 

Now, if they agreed to the commutation and release, it would be a case of truly forgiving and forgetting. If they don’t agree, it frees the state government from having to prove to the electorate it had sympathy for the killers’ families. Three, in the Afzal Guru case, where the Kashmir sentiment was ignored because it was unimportant in the larger context of Indian politics, the government ended up shamefully hanging him and not even intimating his family in time. Now, Guru has been elevated to a big hero in the Valley. But if the victims of the Parliament attack had formally been brought into the picture, he would have been less of a hero. Guru would, in this case, not just be the victim of arbitrary justice, but paying for his sins. 

 There is a strong case for giving due weightage to the feelings of the families of victims when it comes to taking decisions about the death penalty. PS: A lot of arguments were raised on twitter, subsequent to the publication of this post, about letting the kin of victims have a say in the commutation of a death sentence or the release of convicts. I would like to clarify that I am not calling for the kin to have a say in what penalty should be awarded for a crime, but only about having a say in the post-judicial phase. I believe the kin of the victims should be consulted in case the government wants to commute a sentence. It can still take its own decision, but consulting kin would, according to me, allow the government to take their feelings into account while deciding. A forgive-and-forget attitude from the kin would help a decision in favour of clemency. I am not suggesting a veto to the kin, nor any say for them in deciding the punishment. 

Source: http://www.firstpost.com/india/rajivs-killers-nda-move-may-bring-sanity-death-penalty-debate-1634377.html [last accessed 06.02.2015]

The politics of executions in India

By Bobby Naqvi | Special to Gulf NewsPublished: 17:19 February 24, 2014

 Indian Muslims and people of Guru’s home state of Jammu and Kashmir have accused the Congress government of playing dirty politics by fast-tracking his execution. This allegation has some substance.

 “The 23 years of life in a prison and that too on death row and the solitary isolation has almost snatched everything from us and all we have is life in our body and hope in our heart. Please release my father and get him back to me, you’ll be hailed as saviours.” Priyanka Harithra,Daughter of Nalini and Murugan

 “Guru was killed by the Congress for political gains. They sacrificed him for votes. If after so many years, their sentence could be commuted, what was the hurry in killing him?” Tabassum, Widow of Afzal Guru.

These two statements are a telling commentary on how Indian politicians and governments adopt double standards while dealing with Muslim and non-Muslims sentenced to death by a court of law. The first is from a mercy petition written by Priyanka Harithra, the 22-year-old UK-based daughter of Nalini and Murugan who were awarded death penalty in 1999 for assassinating former prime minister Rajiv Gandhi on May 21, 1991. The mercy petition this week was addressed to Rajiv’s widow Sonia and son Rahul after Supreme Court commuted Murugan’s death sentence over a technicality. Nalini’s death sentence was commuted after she was pardoned by Rajiv’s family members on humanitarian grounds. Harithra pleaded with Sonia and Rahul to release her parents.

Harithra’s mercy plea came after Supreme Court on February 18 commuted death sentence of Rajiv’s killers, including Murugan. While commuting the death sentence, the court cited federal government’s delay in dealing with all the four convicts’ mercy petitions. Soon after this verdict, a regional politician and chief minister of Tamil Nadu, J. Jayalalitha announced her government will release the four convicts, all from Tamil Nadu. Her decision, months before general elections, is seen as an attempt to gain support of Tamil nationalists who sympathise with the assassins and blame Rajiv for sending Indian army troops to crush the Tamil rebellion in Sri Lanka.

The second statement is of the widow of a Muslim, Afzal Guru, who was hanged for his role in the December 2001 Parliament attack. After the court commuted Murugan’s death sentence, Guru’s widow Tabassum questioned why her husband was hanged when Rajiv’s killers who were sentenced way back in 1999 have now been pardoned. Guru was sentenced to death in 2003 and the verdict was upheld by the Supreme Court in 2005. In a secret operation on February 9, 2013, the Congress-led UPA government executed Guru and buried him inside Tihar jail where he was lodged since his arrest. The hanging came as a surprise because Guru was 25th on the list of death convicts and the government deals with mercy petitions from death convicts in a chronological order. Clearly, 43-year-old Guru was treated as a special case for some inexplicable reasons and his hanging and burial was shrouded in secrecy. Moreover, the government failed to inform the family members, Guru’s widow Tabassum received a letter about the hanging two days after TV channels broke the news. Tabassum, who has a 13-year-old son, was also not informed about the rejection of her mercy petition. One year on, Tabassum is still pleading for her husband’s body and belongings.

Impressing Hindu nationalists

Indian Muslims and people of Guru’s home state of Jammu and Kashmir have accused the Congress government of playing dirty politics by fast-tracking Guru’s execution. The hanging, they feel, was an attempt to impress Hindu nationalists and a crude attempt to check the rising graph of right-wing opposition Bharatiya Janata Party which had been demanding swift execution of Guru. This allegation has some substance.

To get a sense of this complex game of politics of death practiced by governments and politicians, it is necessary to go into the background of Guru’s sentencing. Throughout his trial, Guru maintained his innocence and denied he had any role in attacking Parliament in which a dozen people were killed. The Supreme Court, in a controversial, order rejected Guru’s appeal and upheld the death sentence. The order, considered controversial by Muslims and human rights activists, makes an interesting read: “Thus the conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment… 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.”

Thus, the Supreme Court, while admitting there was no direct evidence to convict Guru, went ahead to uphold his death sentence in order to “satisfy the collective conscience of the society”. Guru’s trial in lower court also failed to prove beyond reasonable doubt that he was indeed involved in the conspiracy to attack parliament. Here is a paragraph from an article written by human rights activist and celebrated author Arundhati Roy a day after Guru was hanged: “The trial in the fast-track court began in May 2002. The world was still convulsed by post 9/11 frenzy. The US government was gloating prematurely over its “victory” in Afghanistan. In the state of Gujarat, the massacre of Muslims by Hindu goon squads, helped along by the police and the state government machinery that had begun in late February, was still going on sporadically. The air was charged with communal hatred. And in the parliament attack case the law was taking its own course. At the most crucial stage of a criminal case, when evidence is presented, when witnesses are cross-examined, when the foundations of the argument are laid, Afzal Guru, locked in a high-security solitary cell, had no lawyer. The court-appointed junior lawyer did not visit his client even once in jail, he did not summon any witnesses in Guru’s defence, and he did not cross-examine the prosecution witnesses. The judge expressed his inability to do anything about the situation.” Like his hanging, the trial was also swift and fast-tracked.

In contrast, Murugan, his wife and two others — all Hindu Tamils — were sentenced to death for killing Rajiv and 14 others in a suicide bombing. Successive governments never showed any haste in deciding on their mercy pleas. This week, 15 years after they were convicted, the Supreme Court commuted the death sentence blaming the government for delay in deciding mercy petitions. In another case, Sikh terrorist Devinder Pal Singh Bhullar was sentenced to death for carrying out a bomb blast in 1993, killing nine. The government rejected his mercy petition in 2011 but is yet to execute him, possibly to avoid a backlash from the Sikh community.

One can speculate that the government dragged its feet on politically sensitive cases of Rajiv killers because the assassins enjoyed sympathy of Tamil Hindus. Guru’s case was handled with ruthless swiftness because he came from Kashmir, a state in conflict with Indian troops. More significantly, hanging of a Muslim terrorist brought cheers from Hindu nationalists and right-wing politicians. After all, the Supreme Court condemned Guru to die in order to satisfy the nation’s conscience and the government could not have denied Indian people a moment of national glory.

Source: http://gulfnews.com/opinions/columnists/the-politics-of-executions-in-india-1.1295186 [accessed 24 April 2014]

Rajiv’s Killers Versus Afzal Guru

SRINAGAR, WEDNESDAY, 25 RABI-AL-THANI 1435 ; 26 FEBRUARY 2014 CE 

- RIYAZ AHMAD

The contrast also compares the two democracies, Tamil Nadu, J&K.

There were two developments that riveted our attention last week. And the mayhem in the state Assembly was not one of them despite the injury to a PDP legislator or the slapping of a marshal by one of the party’s legislators. One, was the commutation of the death sentence of the former Prime Minister Rajiv Gandhi’s killers to the life imprisonment by the Apex Court. And second the Tamil Nadu Chief Minister Jayalalitha’s decision to release all the seven of them and the ensuing confrontation with centre. The clash made for a gripping political drama and heady television. But Kashmir was hooked for a different reason. 

One, that the killers of a former prime minister of India and a member of the ruling dynasty who were on death row for the past eleven years were granted a due recourse to law and their plea accepted by the court. Second, Tamil Nadu CM dramatically deciding to set them free and setting a three day deadline for the centre to respond. 

New Delhi went into a tizzy, objecting to the release. Supreme Court stayed the move but that was not what was important. The important thing was that even the killers of a prime minister of India, if they are not from Kashmir, can expect not only a fairer process of justice but even clemency with a Chief Minister’s support to boot. Contrast this with what happened to Muhammad Afzal Guru who, by Apex Court’s own order had a circumstantial link to the parliament attack. So he had to die to “satisfy the collective consciousness” of India. He was pulled out of the death row queue where he was at around number 30 and sent to gallows without his family getting a wind of it. He was told about the rejection of his mercy petition by the president only an hour before his death. And his mortal remains continue to be withheld from his family. 

And all the political class in the state has behaved as if they could do little about it. More so, the Chief Minister whose response has veered from publicly complaining about his advise against hanging being ignored by the centre to being kept in dark about the hanging itself. And ever since CM may have issued statements against the hanging, warned of a fallout in Kashmir and Afzal’s long term iconization for the new generation of Kashmiri youth, even seeking his mortal remains but there has never been an occasion when he has made us confident of his will or ability to do something about it. 

Unlike Tamil Nadu government, his government couldn’t get up the courage to pass the resolution on Afzal and nor does his government build a pressure or even make a case for the return of Afzal’s mortal remains. The truth is that behind the CM’s Afzal outrage – honestly felt or politically dictated – there has been a little veiled squeamishness about being too strongly identified with him. But no such defensiveness for Jayalalitha. Not also for Badal, who has BJP as an ally. Rajiv’s and Beant Singh’s killers respectively are not only an opportunity for political posturing and playing to their constituencies but also for some credible action which forces centre to rethink and revise its decision. 

The point here is not to fan an already deep sense of victimhood in Kashmir but to highlight a persisting democratic paradox in the state: the inability of the so called democratic representatives to adequately represent, respond or even play to the legitimate grievances and sentiments of their people. True, mainstream politics in the state cannot project the sentiment of Azadi but this was also never expected of them. Majority of the people who vote for them are conscious of this fact. But what they want from them is not only to deliver the good governance but also fight for their interests and rights and take an unambiguous stand when New Delhi seems to have discriminated against the state. 

And not only talk about it in no uncertain terms but be seen to act to undo it. But what we get is either apathy, a cryptic silence, may be sometimes a statement or two expressing an opinion or simply a show of silence. If anything, the case of Rajiv’s killers exposes the democracy in the state for what it is always suspected to be – a government by the people but obliged to if not representative of New Delhi. 

Source: http://www.greaterkashmir.com/news/2014/Feb/26/rajiv-s-killers-versus-afzal-guru-8.asp [accessed 24 April 2014]

Kashmiri on Death Row Galvanises Opposition to Death Penalty

By Sana Altaf

SRINAGAR, India, Oct 10, 2011 (IPS) - "Is Afzal Guru really the person that so many Indians supposedly want dead? Or are they taking out their frustrations on an easy target?" asked Human Rights Watch, referring to the death sentence handed down to the Kashmiri man who was convicted of conspiracy in the 2001 suicide attack on the Indian Parliament.

"For many, Afzal bears the burden of representing all those who dare to oppose Indian rule in restive parts of the country, because the attack on Parliament was an attack on India," said the statement by Meenakshi Ganguly, South Asia researcher for global rights watchdog HRW.

"Conversely, many Kashmiris would say that Afzal is a freedom fighter, planning an attempt at the symbol of Indian oppression," adds the statement, titled ‘Life, Not Death: Why Afzal Mustn’t Hang’. "Both views are flawed. For this multi-religious, multi-ethnic, multi-cultural state to survive, Indians have to believe in equal justice for all. And in the case of Jammu and Kashmir, there has been consistent failure to deliver on this promise."

A Kashmiri, supported by a wife who is a doctor and a lone teenage son, Mohammad Afzal, commonly called Afzal Guru, was found guilty of conspiracy in the attack on parliament which killed more than a dozen people. He was given the death penalty, which was upheld by the Supreme Court in 2004.

The sentence was to be carried out in 2006, but the execution was stayed following a mercy plea filed by Afzal Guru.

Although most nations across the globe – a total of 139 – have abolished the death penalty, India continues the practice, as the World Day Against the Death Penalty once again rolled around on Oct. 10.

India joined 53 other countries to vote against the December 2007 United Nations General Assembly moratorium on executions, passed with 104 votes in favour and 29 abstentions. However, Indian judges generally follow the 1983 Supreme Court ruling that the death penalty may be resorted to only in the "rarest of rare cases".

Afzal’s death penalty has not gone down well amongst various quarters in Kashmir. The separatist leaders view it as an unjust step, which would endanger the political situation in Kashmir

"I am completely against execution of Afzal Guru. He didn’t get a fair trial. Hanging him would be pure human rights violation," said Shabir Ahmad Shah, the chairman of the Democratic Freedom Party, a separatist organisation.

He says that Afzal’s hanging could have a negative impact on the situation in Kashmir. "When Maqbool Bhat was hanged in India’s Tihar jail in 1984, it was followed by insurgency. And if Afzal is also hanged, it will as well result in dangerous consequences," Shabir told IPS. "People would surely come on streets and protest against it as no Kashmiri wants his hanging."

The unrest in Kashmir has its roots back in 1947, when Britain granted India independence and the Muslim-dominated areas became part of Pakistan. A U.N. resolution, meantime, gave Kashmiris the option to join either Hindu-dominated India or Pakistan or to become independent. But Kashmiris had no chance to make a choice as their homeland is claimed by both India and Pakistan.

Roughly a third of modern-day Kashmir is administered by Pakistan while the rest is under India. But many Kashmiris challenge this, and protesters living on the Indian side rose up in arms in 1989 in an insurgency that simmers to this day.

Saying Afzal did not get a fair trial, Sajjad Lone, another separatist leader, said intellectuals, NGOs and civil society in general needs to stand up against Afzal’s execution, which he said "will not suit the people of Kashmir."

Hardline separatist leader of Kashmir Syed Ali Shah Geelani warned of "dire consequences" if Afzal Guru is hanged, saying in a statement in August that "it will unleash a storm."

Human rights activists and organisations have also criticised Afzal's death sentence, which they see as a human rights abuse.

"Afzal Guru's case is being adjudicated upon in terms of its politics, not in relation to the violations of process and hearing that have taken place. The death penalty has no place in a democracy," said Angana Chatterji, a professor of social and cultural anthropology at the California Institute of Integral Studies (CIIS) in San Francisco, and the co-convener of the International People's Tribunal on Human Rights and Justice in Kashmir.

Chatterji says despite the international movement to abolish capital punishment and the 2007 U.N. moratorium on executions, "India continues to impose the (death) penalty. The allocation of capital punishment continues to be influenced by racism, ethnocentrism, and class prejudice, authorising the state to act against a person's right to life."

Kashmir-based human rights activist Khurram Parvez, a co-founder of the Jammu and Kashmir Coalition of Civil Society (JKCCS), says the sentence handed down to Afzal was not based on a fair trial.

"If anyone reads that judgment, one would come to know that he was pronounced guilty on secondary evidence. No direct evidence was produced in the court against Afzal Guru," Parvez told IPS.

Citing the Supreme Court sentence, he said it states that "the incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender."

"When there is no evidence against Afzal, why should he be hanged? To satisfy the collective conscience of society, it appears India needs a sacrifice," Parvez added.

Advocate Faisal Qadri said the death penalty should be abolished in India. "I am completely against the death penalty. It is the worst kind of human rights violation. Humans have no right to kill anyone, even if it is a criminal."

And Qadri argued that in Afzal Guru’s case, capital punishment is completely unjustified: "Even India’s own leading lawyers admit that Afzal was not given a fair trial."

For ordinary people, the sentence handed to Afzal is a manifestation of India’s bias against Kashmiris.

"The Indian system is biased against Kashmiri people…there are scores of innocent Kashmiri youth who are arrested on the basis of mere suspicion and put behind bars for years with no evidence. How can we expect India to be just to Afzal?" said Iqbal (who provided only one name).

"Whenever any Kashmiri is found involved in any wrong act, India has to act in an unjust manner. That has been India's policy towards Kashmir," says Amina Maqbool, a political science student from the University of Kashmir

The HRW statement says the group "unequivocally opposes the death penalty. Guilty or not, we believe that neither Mohammad Afzal Guru, nor (law student) Priyadarshini Mattoo’s killer, Santosh Kumar Singh, nor (former Iraqi president) Saddam Hussein, nor anyone else, should be executed.

"Taking the life of a human being is inherently cruel, and as a form of punishment is unique in its irreversibility. The intrinsic fallibility of all criminal justice systems assures that even when there is a fair judicial process, innocent persons will still be executed. On a practical level, there is no evidence that it is an effective deterrent," it adds. (END)

Source: http://ipsnews.net/news.asp?idnews=105411
Accessed on 12th October 2011