What then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? – Albert Camus
In an operation cloaked in complete secrecy, Mohammed Afzal Guru, 43, was hanged on the morning of Saturday, 9 February 2013, at Tihar jail in Delhi. The operation was code named ‘Operation 3 Star’ as Afzal was lodged in Jail Number 3 of the prison. With Kafkaesque irony, officials conducted a medical examination at 3 am that same day, with the doctor pronouncing Afzal to be healthy, with normal blood pressure, and presumably fit to be killed – a requirement for cold-blooded execution by judicial and executive diktat. It appears that executing a sick person would not fulfil the Supreme Court’s 2005 judgment: “the collective conscience of society will only be satisfied if capital punishment is awarded to the offender”. The use of the word ‘award’ to order the death of a person seems strange, but is in tune with the notion of playing god, exercising the power of life and death over a fellow human being.
Delay and speed
After keeping the threat of death hanging over Afzal for more than seven years, the executive moved with lightning speed this month – the President rejected the petition for mercy on 3 February, the Home Minister gave his approval on 4 February, and Afzal was executed on 9 February. Almost exactly 29 years earlier, on 11 February 1984, Maqbool Bhat, the co-founder of the Jammu and Kashmir Liberation Front (JKLF), was hanged in the same jail. Bhat became an icon for the cause of Kashmiri independence, and there is still a shutdown in Kashmir Valley every year on 11 February to commemorate his death. Hanging Afzal Guru on 9 February, while possibly an oversight by an executive not in tune with Kashmiri sensibilities, brings home the correlation between this execution and the struggle in Kashmir. The executive rushed the execution – ignoring legal prescriptions for informing the family and allowing appeal against the rejection of a petition for mercy – not for fear of ‘enemies of the nation’ mounting a rescue of the convicted ‘terrorist’ but, more dangerously, for fear of intervention by the courts. For the Union Government – entrusted to uphold the rule of law – to subvert the Constitution, which allows judicial intervention after rejection of a clemency plea, speaks volumes about the state of governance in India.
In the Kehar Singh judgement in 1988, the Supreme Court categorically ruled that the president’s power under Article 72 of the Constitution to commute or pardon a death sentence “falls squarely within the judicial domain and can be examined by the court by way of judicial review”. Kehar Singh, convicted on doubtful evidence as a conspirator in the assassination of Indira Gandhi in 1984 by her two bodyguards, was executed in January 1989. Still, there have been a number of instances where Indian courts have intervened to stay executions after the president’s rejection of a petition for mercy. One prominent example is the case of Murugan, Santhan and Perarivalan, sentenced to death for the assassination of Rajiv Gandhi on 21 May 1991. On 12 August 2011, the three were informed that their petition had been rejected, and that their executions had been scheduled for 9 September 2011. This gave them vital time to exercise their right to appeal. They approached the Madras High Court to stay the execution order on grounds of inordinate delay – 11 years – in the response to their petitions. The High Court entertained the petitions and stayed the executions. Subsequently, the Supreme Court decided to hear these petitions too, and the matter is pending.
The delay of over seven years in the disposal of Afzal’s petition should have been considerable and sound basis for inviting similar judicial intervention. Kehar Singh’s case is not the only one that sets relevant precedent. In 2002, the Supreme Court upheld Devinder Singh Bhullar’s death sentence for killing nine people in a 1993 blast in New Delhi that targeted the cavalcade of the Congress youth leader Maninderjit Singh Bitta. Bhullar’s request for clemency was rejected on 25 May 2011, and he has since petitioned the Supreme Court to commute his death sentence to life imprisonment on account of the inordinate delay in rejecting his plea. The Supreme Court, while hearing Bhullar’s petition, has decided to enlarge the scope of the matter by scrutinising all petitions for mercy pending before the president and state governors. In another instance, the president took 12 years to reject a plea for leniency from death-row convict Mahendra Nath Das, and Das’ subsequent plea for commuting his sentence to life imprisonment was also dismissed by the Gauhati High Court. Das then petitioned the Supreme Court, contending that the president’s delay in deciding upon his fate had resulted in 12 years of excruciating agony and trauma, providing valid ground for commuting his sentence. This matter is also pending decision. In the case of Vijayavardhana Rao and Chalapati Rao, two young men slated to be executed in December 1996, a petition by a civil liberties group, the Peoples’ Union for Democratic Rights, resulted in a stay of execution and the commutation of their sentences to life imprisonment. That Afzal Guru was denied his right to appeal raises questions over the constitutionality of his execution.
Actus reus
Consider the events which landed Afzal on death row on two counts: waging war against the state, and criminal conspiracy to murder. On the cold winter morning of 13 December 2001, just before noon, five armed men in an Ambassador car packed with explosives drove through the gates of the Indian Parliament compound. The car had a fake Home Ministry sticker which read:
INDIA IS A VERY BAD COUNTRY AND WE HATE INDIA WE WANT TO DESTROY INDIA AND WITH THE GRACE OF GOD WE WILL DO IT GOD IS WITH US AND WE WILL TRY OUR BEST. THIS EDIET WAJPAI AND ADVANI WE WILL KILL THEM. THEY HAVE KILLED MANY INNOCENT PEOPLE AND THEY ARE VERY BAD PERSONS THERE BROTHER BUSH IS ALSO A VERY BAD PERSON HE WILL BE NEXT TARGET HE IS ALSO THE KILLER OF INNOCENT PEOPLE HE HAVE TO DIE AND WE WILL DO IT.
On being stopped, the men got out of the car and opened fire. In the ensuing gun battle, all five attackers were killed, along with eight policemen and a gardener. Within just two days, on 15 December 2001, the Special Cell of the Delhi Police announced that it had cracked the case. The police claimed to have uncovered a conspiracy involving the five attackers, described as ‘Pakistani terrorists’ – Shahbaz Khan, alias Ghazi Baba, a top operations commander of the jihadist group Jaish-e-Mohammed in India; Maulana Masood Azhar, the Pakistan-based founder of Jaish-e-Mohammed; and an individual called Tariq Ahmed, described simply as “a Pakistani”. The Indian Police arrested four Kashmiris accused of being collaborators: Professor S A R Geelani, Mohammed Afzal, Shaukat Hussain Guru, and his wife Afsan Guru.
The case against these suspects was first tried in 2002 under the draconian POTA – the Prevention of Terrorism Act – which was later repealed in 2004. The trial court sentenced Geelani, Afzal and Shaukat to death, and Afsan Guru was given five years of imprisonment. Upon appeal, in October 2003, the Delhi High Court acquitted Geelani and Afsan of all charges but upheld the death penalty for Afzal and Shaukat. Subsequently, on 4 August 2005, the Supreme Court upheld the acquittals of Geelani and Afsan. Shaukat’s death penalty was changed to a ten-year prison sentence for the lesser offence of “an act or omission concealing the existence of a design to wage war against the Government of India”, under Section 123 of the Indian Penal Code. Shaukat was released in 2010 after serving the sentence.
In Afzal’s case, however, the court increased the sentence to death on two counts, upholding the previous conviction for conspiracy, and deciding that the attack also amounted to the additional offense of waging war on India: “The deceased terrorists were roused and impelled to action by a strong anti-Indian feeling as the writing on the fake Home Ministry sticker found on the car (Ext. PW 1/8) reveals.” Yet in the allegation of conspiracy, which necessarily involves a collective plot, five suspected collaborators were dead, three were presumably out of reach, two were acquitted of all charges, and one was convicted of only a minor offence. Mohammed Afzal was, strangely, cast in the role of a lone conspirator against India and, in the words of the apex court, was “a menace to the society” whose “life should become extinct”.
Life and times of Mohammed Afzal
So who, exactly, was this man who was to be made ‘extinct’?
In Kashmir, Afzal was seen as ‘the boy next door’. Muzamil Jaleel, an assistant editor at the national daily Indian Express who in 1987 studied with Afzal and Showkat at the Muslim Educational Trust School, an English-medium school in Sopore, writes, “For me, Afzal was a friendly schoolmate who loved poetry and talked of books during those festive lunch breaks.” Muzamil recalls Afzal as the best student in their class, who surprised the teachers with his wit and intelligence. Afzal then chose to study medicine and joined the Jhelum Valley Medical College in Srinagar for a year, before quitting in 1989.
The 1987 elections in Kashmir, widely perceived to have been rigged by the Indian Government, were formational for Afzal’s generation of young Kashmiris. In the words of Professor Abdul Ghani Bhat, a prominent member of the All Party Hurriyat Conference, a separatist conglomeration demanding independence, “Kashmiri youths participated in the 1987 elections with great enthusiasm and seriousness and after due thought. But the poll results fired them with anger. They decided to fight violence with violence.” Like many other young Kashmiri men in 1989, Afzal, then about 20 years old, joined the militant Jammu and Kashmir Liberation Front (JKLF) and crossed the Line of Control to undergo arms training. It appears that Afzal didn’t really take to the role of a fighter, and soon returned home and surrendered to Indian authorities in 1993. He tried to return to medical college but failed, came to Delhi, and unsuccessfully tried to join Jawaharlal Nehru University. Afzal then returned to Srinagar and started a healthcare business. He married Tabassum in 1998, and they had a son in 1999. Afzal named the child Ghalib, after the legendary Urdu poet.
But the life of a surrendered militant is not easy; active militants are suspicious of those who have ‘crossed over’ into civilian life, as are the Indian security forces, which regularly detain and torture former militants, coercing them into becoming informers. The same fate befell Afzal, who was repeatedly picked up, detained and brutally tortured in the Special Task Force (STF) camp of the Jammu and Kashmir (J&K) Police. Afzal’s statement in court clearly names the police officers who coerced him into doing a ‘small job’ in Delhi. Further, Afzal reveals that the security agencies introduced him to a man named Tariq, who worked with the STF, and who directed Afzal to take a person called Mohammad to Delhi and help him buy a second-hand, white Ambassador car. That same Ambassador car was later used in the attack on Parliament, and Mohammed was one of the attackers killed in the gun battle.
Afzal explained the peripheral part he played in the Parliament attack, revealing specific names, times and places, but these leads were never properly investigated. Incredibly, in a conspiracy of this magnitude, leading to an attack on the heavily guarded Indian Parliament, the police claimed to have cracked the case in a single day and then halted any further investigation after arresting only four people.
Fair trial?
Afzal’s execution reveals the arbitrary and discriminatory manner in which capital punishment is implemented in India. The state is of course culpable, but that arbitrariness works out in myriad ways. At the start of the trials, a group of friends of Geelani, human rights activists and lawyers formed the All India Defence Committee for S A R Geelani. It appears that no similar Committee was formed to defend the others accused in the case. The court duly appointed a competent counsel to defend Afzal. The Committee also offered Afzal’s appointed counsel a paid brief to defend Geelani. The counsel then withdrew as Afzal’s lawyer and represented Geelani. Her junior, who had little experience, then represented Afzal. That lawyer did not once visit Afzal in jail to take instructions, barely cross-examined the prosecution witnesses, and did not summon a single defence witness. As a result, Afzal was denied competent counsel during the crucial trial court hearings, when all the final evidence and arguments were recorded. As per legal process, omissions and mistakes at the trial stage cannot be rectified during the appellate stages of the case.
The Parliament attack also led to the mobilisation of hundreds of thousands of soldiers on the India-Pakistan border, bringing the two nuclear-armed nations to the brink of war. Yet, amid the belligerent nationalism and calls for vengeance, the fact of the matter was that the five actual attackers were dead. The need for living suspects to sustain the drama seems to have coloured the investigation, trial, judgments and appeals. In a conspiracy case, the fact that only a single person was convicted already introduces an element of doubt: a person can hardly be accused of conspiring with himself. The evidence presented by the prosecution at each stage is riddled with inconsistencies and contradictions which were glossed over by courts. These include details of the time and place of Afzal’s arrest; the purported seizures of laptops, mobile phones and money; the identification of the dead attackers by Afzal; the identification of Afzal by prosecution witnesses, which was done not in an identification parade, but by the Delhi Police presenting him alone to the individuals who identified him; and the phone records and SIM cards produced to establish links in the conspiracy. A detailed analysis of the evidence and its shortcomings is available in two excellent reports,Trial of Errors and Balancing Act, published by the Peoples’ Union for Democratic Rights, Delhi.
Aftermath and portends
Afzal’s execution has rekindled anger in Kashmir. Headlines on Kashmir in the national dailies read ‘Censorship, curfew, protests and deaths, For Third Straight Day, Valley on Boil’, ‘Fear, Anxiety Return to Haunt Kashmir’, and ‘Deserted Streets, Concertina Rolls’. However, for several days after the execution, there were no national newspapers available in Kashmir, while police barred local papers from publishing at all. Security forces imposed a blanket curfew, and the state was under a complete media blackout after the suspension of cable TV and Internet services. Yet all of this failed to prevent protests at several places in the Valley, leaving three dead in clashes with the police. Sadly, this stifling of all democratic space may well feed the perception that only a militant movement can bring any change to Kashmir.
In total transgression of the norms of ordinary humanity and in violation of the law, Afzal’s family was not informed of the impending execution or given an opportunity to meet Afzal before he was hanged. In a mockery of the legal provisions with regard to executions, the Union Government sent the family a notice by speed post, which only reached the family two days after the execution. The family now has only one demand: that the Government of India return Afzal’s body. The government might hope that the dead will be forgotten, but in Kashmir it is never so. The first grave in Kashmir’s ‘Martyrs Graveyard’ has been lying vacant for 29 years, awaiting the mortal remains of the JKLF’s founder Maqbool Bhat. Afzal was buried in Tihar jail, but a second vacant grave next to Bhat’s may prove another rallying point for militancy.
The current global trend is towards abolishing the death penalty. According to Amnesty International, 140 countries – more than two-thirds of the countries of the world – have already abolished capital punishment in law or in practice. In 2011, only 21 states conducted executions. However, India seems to be catapulting backwards with a vengeance, with two secret executions in the last three months: first the hanging of Ajmal Kasab on 21 November 2012 for the 26/11 attack on Mumbai, and now Afzal Guru. Recent developments further emphasize the degree to which Afzal was discriminated against. According to the latest reports, India’s new president Pranab Mukherjee has rejected petitions for mercy for four convicted aides of the forest brigand Veerappan – Simon, Gnanaprakasam, Madhaian and Bilavendran. Unlike in Afzal’s case, execution did not immediately follow the rejection; the four have been informed, and have approached the Supreme Court for clemency on grounds of inordinate delay in deciding upon their pleas. As of 18 February 2013, the Supreme Court has stayed their executions.
The words of the playwright George Bernard Shaw ring true: “And so to the end of history, murder shall breed murder, always in the name of right and honour and peace, until the Gods are tired of blood and create a race that can understand.” The gods may well turn out to be on the side of the bigger battalions, of blood, death and destruction, but humans need not be. It is time for us mortals to abolish capital punishment and its annihilation of the dignity and sanctity of human life.
~ Rakesh Shukla practices law in the Supreme Court of India.
