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.