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The Justice of Injustice Indian style: Judicial murder of Afzal Guru

A perfect day for democracy:  
By Arundhati Roy

WASN`T it? Yesterday I mean. Spring announced itself in Delhi.

The sun was out, and the law took its course. Just before breakfast, Afzal Guru, prime accused in the 2001 attack on the Indian parliament, was secretly hanged, and his body was interred in Tihar jail.

Was he buried next to Maqbool Butt? (The other Kashmiri who was hanged in Tihar in 1984.

Kashmiris will mark that anniversary on Monday.) Afzal`s wife and son were not informed. `The authorities intimated the family through speed post and registered post,` the Home Secretary told the press.

`The Director General of J&K police has been told to check whether they got it or not.

No big deal, they`re only the family of a Kashmiri terrorist.

In a moment of rare unity the nation, or at least its major political parties, the Congress, the BJP and the CPM, came together as one (barring a few squabbles about `delay` and `timing`) to celebrate the triumph of the rule of law.

The conscience of the nation, which broadcasts live from TV studios these days, unleashed its collective intellect on us the usual cocktail of papal passion and a delicate grip on facts. Even though the man was dead andgone, like cowards that hunt in packs, they seemed to need each other to keep their courage up.

Perhaps because deep inside themselves they know that they all colluded to do something terribly wrong.

What are the facts? 
On Dec 13, 2001, five armed men drove through the gates of the Parliament House in a white Ambassador fitted out with an IED (improvised explosive device). When they were challenged they jumped out of the car and opened fire. They killed eight security personnel and a gardener.

In the gun battle that followed all five attackers were killed.

In one of the many versions of confessions he made in police custody, Afzal Guru identified the men as Mohammed, Rana, Raja, Hamza and Haider. That`s all we know about them even today. L.K.

Advani, the then Home Minister, said they `looked like Pakistanis`.

(He should know what Pakistanis look like, right? Being a Sindhi himself.) Based only on Afzal`s confession (which the Supreme Court subsequently set aside citing `lapses` and `violations of procedural safeguards.`) the government of India recalled its ambassador from Pakistan and mobilised half a million soldiers to the Pakistan bor-der. There was talk of nuclear war.

Foreign embassies issued travel advisories and evacuated their staff from Delhi. The standoff lasted for months and cost India thousands of crores.

On Dec 14, the Delhi police special cell claimed it had cracked the case. On Dec 15 it arrested the `mastermind`, Professor S.A.R Geelani, in Delhi and Showkat Guru and Afzal Guru in a fruit market in Srinagar. Subsequently they arrested Afsan Guru, Showkat`s wife.

The media enthusiastically disseminated the special cell`s version. These were some of the headlines: `DU Lecturer was Terror Plan Hub`, `Varsity Don Guided Fidayeen`, `Don Lectured on Terror in Free Time.` Zee TV broadcast a `docudrama` called `December 13`, a recreation that claimed to be the `Truth Based on the Police Charge Sheet.` (If the police version is the truth, then why have courts?) Then Prime Minister Vajpayee and L.K.

Advani publicly appreciated the film.

The Supreme Court refused to stay the screening saying that the media would not influence judges.

The film was broadcast only a few days before the fast track court sentenced Afzal, Showkat and Geelani to death. Subsequentlythe High Court acquitted the `mastermind`, Professor S.A.R Geelani, and Afsan Guru. The Supreme Court upheld the acquittal. But in its 5th August 2005 judgment it gave Mohammed Afzal three life sentences and a double death sentence.

Contrary to the lies that have been put about by some senior journalists who would have known better, Afzal Guru was not one of `the terrorists who stormed Parliament House on December 13th 2001` nor was he among SITUATIONER those who `opened fire on security personnel, apparently killing three of the six who died.` (That was Chandan Mitra, now a BJP Rajya Sabha MP, in The Pioneer, October 7th 2006). Even the police charge sheet does not accuse him of that.

The Supreme Court judgment says the evidence is circumstantial: `As is the case with most conspiracies, there is and could be no direct evidence amounting to criminal conspiracy.

But then it goes on to say: `The incident, which resulted in heavy casualties had shaken the entire nation, and the collective conscience of society will only be sat-isfied if capital punishment is awarded to the offender.

Who crafted our collective conscience on the Parliament Attack case? Could it have been the facts we gleaned in the papers? The films we saw on TV? There are those who will argue that the very fact that the courts acquitted S.A.R Geelani and convicted Afzal proves that the trial was free and fair. Was it? 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. The Gujarat pogrom was ongoing. And in the Parliament Attack case, the Law was indeed 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 in the High Court and Supreme Court you can only argue points of law, you cannot introduce new evidence 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 Afzal`s defence and did not cross examine the prosecution witnesses. The judge expressed his inability to do any-thing about the situation.

Even still, from the word go, the case fell apart. A few examples out of many: How did the police get to Afzal? They said that S.A.R Geelani led them to him. But the court records show that the message to arrest Afzal went out before they picked up Geelani. The High Court called this a `material contradiction` but left it at that.

The two most incriminating pieces of evidence against Afzal were a cellphone and a laptop confiscated at the time of arrest. The Arrest Memos were signed by Bismillah, Geelani`s brother, in Delhi. The Seizure Memos were signed by two men of the J&K Police, one of them an old tormentor from Afzal`s past as a surrendered `militant`.

The computer and cellphone were not sealed, as evidence is required to be. During the trial it emerged that the hard disc of the laptop had been accessed after the arrest. It only contained the fake home ministry passes and the fake identity cards that the `terrorists` used to access Parliament.

And a Zee TV video clip of Parliament House. So according to the police, Afzal had deleted all the information except the most incriminating bits, and he was speeding off to hand it over toGhazi Baba, who the charge sheet described as the Chief of Operations.

A witness for the prosecution, Kamal Kishore, identified Afzal and told the court he had sold him the crucial SIM card that connected all the accused in the case to each other on the 4th of December 2001. But the prosecutions own call records showed that the SIM was actually operational from November 6th 2001.

It goes on and on, this pile up of lies and fabricated evidence. The courts note them, but for their pains the police get no more than a gentle rap on their knuckles.

Nothing more.

Then there`s the back story.

Like most surrendered militants Afzal was easy meat in Kashmir a victim of torture, blackmail, extortion. In the larger scheme of things he was a nobody. Anyone who was really interested in solving the mystery of the Parliament Attack would have followed the dense trail of evidence that was on offer. No one did, thereby ensuring that the real authors of conspiracy will remain unidentified and un-investigated.

Now that Afzal Guru has been hanged, I hope our collective conscience has been satisfied. Or is our cup of blood still only half full?
See also:

The death penalty given by Supreme Court of india to hang Mohammad Afzal Guru on October 20, 2006, has been executed.
Defending Afzal Guru, Arundhati Roy said that the Supreme Court’s ruling which says that Afzal Guru must be hanged ‘to satisfy the collective will of the nation’ although there is no proof of his involvement is in itself unconstitutional.

Afzal Guru’s hanging will reinforce the perception of two sets of legal norms prevalent in a society polarising fast on communal lines, says Ram Puniyani

By Ram Puniyani, Combat Law 

There were two petitions with the President, one demanding Afzal’s immediate hanging and the other asking for clemency and reducing his punishment to a life sentence. Guru was one of the accused in the case of assault on Parliament on December 13, 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 the same. In the trial that took place the provisions of International Covenant on Civil and Political Rights, had not been respected. Supreme Court noted that there is no direct evidence of his involvement. The evidence was mainly circumstantial. All three courts including the apex court have acquitted him of the charges under POTA of belonging to either a terrorist organisation or a terrorist gang. Court also noted that the evidence was fabricated. Most importantly, he was not given any worthwhile legal assistance to defend him during interrogation. 

When Ram Jethmalani offered to be the lawyer for SAR Geelani, the Hindutva goons attacked his office. One also recalls here that the lawyers offering to hold the brief of accused in July 11, 2006 Mumbai blasts were also threatened by Hindutva outfit, a real case of cowardly display of pseudo-patriotism. At best, Guru was facilitator in the crime and not a part of directly perpetrating the crime, and the evidence against him is 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 he was not a member of any banned organisation, “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 organisation, 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 organisation 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 middle classes. 

Many a human rights activist of repute sat on a dharna demanding the commutation of the death sentence, to life imprisonment. They issued appeals to the same effect and also have floated the petitions for clemency. Not to be left behind another section of activists have floated counter petitions demanding nothing short of death penalty for this “terrorist”. In various talk shows, the angry audience is hooting down those talking of the facts of the case and asking for leniency in the light of the holes in the story built by the police authorities. There are two major questions involved in the case. One, that death penalty should be given in the rarest of rare cases, and two when world over the brutal capital punishment is being done away with, should we stick to it? The other peripheral issues which are trying to undermine the basic issues are the hysterical nationalism of Hindu right and sections of society who cannot think that the crime of those accused of acts of terror also needs to be proved before they are punished, and that the punishment has to commensurate with the crime. For them once Supreme Court has ruled the doors for clemency are closed.

The base on which Supreme Court has given the judgment has been 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 is that if Guru is not hanged it will be an insult to those who have laid their lives for defending Parliament. And that other terrorist acts a la Kandahar may be undertaken to bargain for his release. The other question, which has got mixed up with this, is the fate of peace process, which is going on in Kashmir and South Asia as a whole. In the visual media debates, one can see the hysterical nationalism oozing from every pore of Hindu right wing and some others. 

Some Muslim spokespersons of this or the other party are finding this as the best opportunity to wear their patriotism on their sleeves by taking blinded firm positions against any consideration of clemency. This became most obvious when Mukhtar Abbas Naqvi of BJP went to the extent of denying that Bhagat Singh’s kin can ever make a clemency petition in this case, to the loud applause of the studio audience. As matter of fact Bhagat Singh’s kin Prof Jagmohan Singh and Anand Patwardhan, the noted documentary filmmaker and rights activist, had issued the appeal carried by the media. It is unlikely that the BJP spokesperson would have missed it; any way some times even feigned ignorance is bliss to pursue one’s political assertions! The response of letter writers in the newspaper columns is no different. Most of them demanding the blood of this ‘terrorist’! Nothing else can reflect the state of social common sense in the society. By now communal violence has become passé in the society. It is justified to the extent that those involved in this are neither punished nor even looked down upon. On the other hand anybody remotely linked to acts of terror can be hanged without any pangs of conscience, communal patriotism at its worst on display.

The impression is gaining ground that there are two legal systems in India. One, where the killer of Graham Staines is spared the noose and is hailed as Hindu dharma rakshak. While the other one is for those who belong to the minorities

While Supreme Court deserves all the respect, one has to see that the primary investigation done by the police, whatever its flaws forms the base of the judgment. When that investigation has holes, should it be accepted as it is presented? When the primary culprits are either dead or 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 needs to be looked at again; the flaws of the investigation, the weakness of and deliberate violation of norms by police authorities and the absence of competent legal assistance to Afzal should alert us to the fact that something is seriously amiss in the whole story. The worst fallout of hanging of Afzal will be that the real truth will remain buried in the shoddy investigation and the real culprits may not be apprehended at all, who so ever they are. 

Mere being guided by Islamophobia is no guarantee for the correctness of the story of prosecution. Afzal’s letters and the appeal of his wife have a lot to tell which has been ignored. Even the role of media in reaching Afzal to hangman’s noose should be looked at carefully; we need to question that ‘trail by media’ should not become the base of our legal system. The quality of the judgments is the backbone of the strength of democracy. State is all-powerful to hang someone on the shoddy ground but at the same time it will be hanging the very concept of a just legal system. Lets have a look at the vulnerability of Afzal Guru, a Kashmiri, a poor man and an ex-militant not being able to afford the legal cover. Is that not ground enough to re-look at the case? Even the latest verdict of apex court, that presidential pardon is subject to review by the same system, which has given punishment, nullifies the very basic of the provision of presidential pardon. It needs to be debated whether the President will have this power or from now on there will be no appeal once the apex court has given its verdict even if that be based on the investigation full of gaping holes.
Kashmir has been reduced to ‘our’ real estate, where we are posting lakhs of our soldiers to deal with couple of thousand of militants! Surely if there is one Indian soldier for every seventh Kashmiri, no wonder Kashmiris will see it as an occupation army. After having said that, the punishment being meted out to Guru is not commensurate with the crime done by him, one will also endorse that the very notion of capital punishment is nothing but barbarism, and it does not become dignified if it is given to a suspected terrorist. Many of those otherwise swearing by non-violence are so communalised at core that they are at the forefront of some or other moves demanding the hanging of Guru.

One can understand that for the RSS and its affiliates this is the golden opportunity to display their patriotism, partly also to wash the sin of accompanying the terrorists to Kandahar by one of their ministers. One can also understand the success of RSS in communalising the social thinking to the extent that now truth and humane values have ceased to matter in the face of communal thinking. Justice is being converted into revenge and punishment is meant to further communalise the society rather than a means of reform, rather than being an occasion to introspect as to why such crimes are going on. Surely, no one is born a terrorist and no one likes to resort to these means by choice. What are the deeper circumstances due to which these acts of violence are taking place needs to be given a thought. One understands that terrorism is a mere symptom of the underlying disease, which has roots in injustices somewhere. One understands killing the terrorists cannot finish the terrorism. For that the underlying causes have to be addressed.

The perpetrators of communal violence not only get away with their crimes but also sometimes they get promotions, as in the case of Ramdeo Tyagi of Maharashtra, the man who led the bloody attack on Suleiman Bakery in Mumbai during 92-93 riots

The double standards of our society and legal system are becoming glaringly apparent. The perpetrators of communal violence not only get away with their crimes but also sometimes they get promotions, as in the case of Ramdeo Tyagi of Maharashtra, the one who led the attack on Suleiman Bakery in Mumbai during 92-93 riots. Hundreds of police officials who have been named in the inquiry commission reports are enjoying the ‘fruits’ of their crimes of omission and commission. The long arm of law could not even touch Bal Thackeray and Narendra Modi, who have been the main architects of Mumbai and Gujarat riots respectively. On the contrary they landed up increasing their political clout after presiding over these genocides. While the perpetrators of Mumbai riots are having a gala time, the culprits of subsequent bomb blasts are being meted out the punishments due to them. The general impression is gaining ground in the society that by now there are two legal systems in the society. One for the followers of Hindu communalism, where killer of Pastor Graham Staines, Dara Singh, is spared the noose and is hailed as Hindu dharma rakshak (protector of Hindu faith), the perpetrators of communal violence who get away with ease. The other one is for those who belong to minorities. In their case even the remotest association with the terror attacks is ground enough for hanging or the severest possible punishment.

In Kashmir, Indian army is seen as the occupation army, thousands of innocents have been tortured by this army, and Chittisinghpura is just a tip of iceberg. The hanging of Maqbool Butt in 1984 did give a feeling of alienation and later a boost to militancy. Who do we blame for that? Those calling for a hangman for Guru surely are bent upon repeating the process. Nation can watch the hanging of those who have not committed the crime of such a severe proportion, but while hanging them what processes will be unleashed need to be seen overcoming the communal myopia. We must distinguish between the hysterical nationalism of the likes of those demanding the hanging and the humane nationalism wanting to call for reconsideration of the punishment meted out, to quench the feverish pitch of communalised sections of society. This hanging has surely reinforced the perception of two sets of legal norms, which are prevalent in the country.

I am not afraid of hanging, The Sunday Indian, 23 Sept., 2011

- Letter to the Indian President
To read and endorse this letter click the link above.
- Letter the Indian National Human Rights Commission (NHRC.) 
To read this letter, click the link above.
You can also send endorsments for both the letters to:
Partial list of endorsors so far: Anand Patwardhan, Arundhati Roy, Noam Chomsky, Sister Helen Prejean, Harsh Mandar, S. A. R. Geelani, Sandeep Pandey, Justice Suresh, Gautam Navlakha, Ved Bhasin, Ziauddin Sardar Praful Bidwai, Ram Puniyani, Dionne Bunsha, Jyoti Punwani, Asgar Ali Engineer, Ammu Abraham.
Send in your endorsments today!
Please also support a new petition to the President. It is sponsored by Mukul Dube, N. D. Pancholi and Harsh Kapoor | Click here

By Indira Jaising, Hindustan Times, 20 Jan., 2007

To send a man to his death without legal representation is not only unconstitutional but also barbaric 

A letter to NDTV by N. D. Pancholi (Afzal Guru's lawyer), 26 Dec., 2006

"Your repeated news bulletins over two days reduced the issue of the hanging of Afzal and his Mercy Petition pending with the President to a very simplistic solution "Show repeatedly the video tape (an unlawful piece of evidence) of the alleged confession of Afzal recorded in police custody as breaking news, convince the viewers that it has brought out the ultimate truth, ask them to send SMS messages to NDTV conveying their opinions about the "—Phansi" (hanging) of Afzal, and then pour out the "—collective opinion" gathered in this manner to pave the way for the prompt hanging of Afzal."What a simple, quick solution of an issue involving the life and death of a citizen!" Click
Media bending the truth to push Afzal to the gallows
-- Bv Arundhati Roy, Hindustan Times, 23 December 2006. | Click
India's shame -- Bv Arundhati Roy, The Guardian, 15 December 2006. | Click
If the proceedings of the trial of Afzal guru and three others before the designated judge under POTA were to be videographed one would have understood the trivialization of rule of law in this country.

-- K. G. Kannabiran, President People's Union for Civil Liberties. | Click

A letter to Hindustan Times by Sandeep Vaidya, 25 Dec., 2006. | Click
Afzal Guru’s hanging will reinforce the perception of two sets of legal
norms prevalent in a society polarising fast on communal lines,
says Ram Puniyani By Ram Puniyani, Combat Law, Nov - Dec 2006 | Click
It will remind Kashmiris once again how communal and biased
Indians are when it comes to Kashmir.

By Inam ul Rehman, Kashmir Affairs 
Kashmir sees another son being hanged

When a Delhi court awarded death sentence to the Kashmiri
Muhammad Afzal Guru, what first came to minds of the
agonized Kashmiris was a previous hanging in Delhi’s Tihar jail.
That hanging changed not only the course of Kashmir history,
but also resulted in a drastic change in the political thinking of
Kashmiris says Pervez Majeed.Kashmir Affairs | Click
The Very Strange Story of the Attack on the Indian Parliament

-- By Arundhati Roy, Outlook, 30 October 2006

"To invoke the 'collective conscience of society' to validate ritual murder,
which is what the death penalty is, skates precariously close to valorising
lynch law.It's chilling to think that this has been laid upon us not by
predatory politicians or sensation-seeking journalists (though they too have
done that), but as an edict from the highest court in the land."

Article | Original Link
The case of a Kashmiri Muslim convicted for terrorism raises serious
questions about the operation of Indian democracy, says Shubh Mathur Link
. Unfortunately no one from both the sides, for as well as against
the execution, is looking at the real background of the whole episode.
It is a pity that even those who have been continuously protesting
against this execution and claim to stand for the rights of Kashmiris
have not been able to project their case in the right perspective,
says M. Ashraf. Article | Greater Kashmir Online
"I don't know how many of you are aware of the Intelligence Bureau or
Home Ministry again making attempts to use media as a tool."
By Anuradha Bhasin Jamwal, Executive Editor of Kashmir Times. Click
The Supreme Court acknowledges that Mohammed Afzal Guru is not a
terrorist and that they have no direct evidence against him. Is he on
death row on the basis of a shoddy probe? Mihir Srivastava looks at
critical questions still unanswered. Link
The Economic and Political Weekly, September 17, 2005

Three judicial pronouncements have been made on the Parliament attack case
including the latest Supreme Court judgment. But certain questions are still
unanswered: Who attacked Parliament and what was the conspiracy? On what
basis did the NDA government take the country close to a nuclear war? What were
the roles of the state task force of Jammu and Kashmir and special cell of Delhi police
investigating the cases? Given the momentous nature of these questions, for the
future of Indian democracy nothing less than a Parliamentary enquiry is necessary
to provide the answers.

By Nirmalangshu Mukherji | Article ZNet Interview 

By Nandita Haksar, 30 Sept., 2006 | Click
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