By S Zafar Mehdi Safvi
To hang or not to hang! The debate over barbarous capital punishment still lingers on. Many civil rights activists, lawyers, and liberal intellectuals have been arguing against it on humanitarian grounds for a while now. A potent argument against capital punishment is that it has no deterrence effect, with many countries already having done with it. After all, as sane minds argue, sanctity to life should prevail over “eye for an eye” approach. But then some argue, it is warranted in “rarest of rare crimes”. May be. But one wonders, what constitutes these ‘rarest of rare’ cases?
As talk veers to death penalties, the intriguing case of Afzal Guru flashes to mind. Guru, a Kashmiri, is on a death row over his alleged involvement in 2002 Parliament attack case. As his mercy petition lies pending in corridors of Rashtrapati Bhawan, he has become a favourite whipping boy for right wing forces to score brownies over their political adversaries. But, I beg to ask: Does his case fall under “rarest of rare” categories? Does he deserve to die like this? Or more precisely, as Nirmalangshu Mukherji puts it, “Should Guru die?” (Economic Political Weekly, 17 Sept 2005).
Mukherji believes it would be a “travesty of justice to hang Guru”. And, as noted Human Rights campaigner Nandita Haksar rightly affirms, “We haven’t even heard Guru’s story”. (Yahoo news, 30 Sept 2006). Death penalty is awarded in only ‘rarest of rare’ crimes, where crime is established beyond any iota of doubt, after a fair trail in accordance to the due process of law and international standards of human rights. But, in Guru’s case, rule was not applied, as it ought to. “Guru’s death penalty violates Supreme Court’s own guidelines, which say that capital punishment should be awarded in ‘rarest of rare crimes’ which doesn’t apply to Guru,” notes activist and columnist Praful Bidwai (News International, 21, Oct, 06).
There are whole lot of loopholes and glaring doubts which merit serious contemplation. Death sentence is doled out to accused only after strictest observance of free trail. So, did Guru get a free trail? He was denied worthwhile legal assistance at trail court—a crucial stage where evidences are produced and examined, which later becomes basis for court’s verdict. Right to legal protection is an inherent right. It is clearly enshrined in UN Declaration of Human Rights or Universal Declaration. Constitution of India also entitles a citizen with right to be defended in court of law.
Prosecution had accused him for being “facilitator”, and not directly involved in the crime. It’s case stood wholly on “circumstantial evidence”, for which death penalty becomes grossly disproportionate. Guru was sentenced to death by trail court on 18 December, 02, and later the sentence was upheld through appeals in High Court and Apex court respectively. But Colon Gonsalves, a senior Supreme Court advocate, who defended Guru at High Court, has a valid argument to make. He says in his report, “When I was brought in to defend Guru in High Court and I studied the trail court proceedings, it was clear that apart from appreciation of evidence, his case rested on two grave infirmities. First was the media trail, which rendered doing justice to Guru impossible, and second was trail court, which had denied him a lawyer”.
It won’t be exaggeration to state that Guru’s case is based on unsubstantiated charges and concocted evidence put together by investigating agencies, having their own axe to grind. As per his own admission, Special Task Force personnel ruthlessly tormented him. Confessions were extracted from him under duress, after being tortured and his family threatened of dire consequences.
The notorious Special Cell of Delhi Police used media to brand him a “terrorist”, even before trail. He was forced to confess to crime before media. It followed the media trail in rather brazen fashion, including a film broadcast on Zee TV, apparently previewed and approved by the then Prime Minister himself. It was one of the prime factors in prejudicing the outcome of the trail. As noted legal hawk and constitutional expert, Ram Jethmalani puts it, “To cause prejudice in the minds of public against a person standing trail is worst kind of contempt” (Tehelka, 28 Oct 06).
Delhi High Court acknowledged that investigating agencies had fabricated evidence against him, yet it went ahead to uphold the “unfair” verdict against him. Supreme Court was moved but it too rejected the appeal on account of “procedural irregularities” in obtaining it and yet upheld the judgment on nothing more than derisory circumstantial evidence. It though admitted that his direct association with any terrorist outfit couldn’t be proved beyond doubt.
Guru’s case doesn’t meet international standards of a fair trail. Taking all the serious loopholes into account, it violates Article 7, 10, 14, 17 of International Covenant on Civil and Political rights. India being a signatory of the covenant is obliged to protect the rights of citizens guaranteed therein. But has it?
Firebrand activist and author, Arundhati Roy adeptly vents her ire in following words, “I joined the protest demo at Jantar Mantar against Guru’s death sentence because I believe he is only a pawn in a very sinister game. He is not the Dragon, as he is being made out to be, he is only dragon’s footprint, and if dragon’s footprint is made to ‘become extinct’, we will never know who the dragon was” (Outlook, Oct 30, 06).
Going ahead with the death verdict would be an absolute miscarriage of justice. As well-known human rights activist Ram Puniyani notes, “Guru’s hanging will reinforce the perception of two set of legal norms prevalent in a society, polarizing fast on communal lines” (Combat Law, Nov-Dec, 06). There is a dire need of fresh trial into Guru’s case, where he gets chance to put his side of story before court.
“Has anyone ever heard of a death sentence on a man who was undefended at a trail? This monstrous miscarriage of justice warrants re-trail,” believes legal expert and columnist, A.G Noorani (Hindustan Times, 24 Oct 06). He is echoed by another legal luminary Ram Jethmalani, who too believes, “The man was very poorly defended, there is no doubt” (Tehelka, 28 Oct, 06).
So far there is no concrete, foolproof, fully substantiated evidence showing Guru’s direct involvement in December 13, 2001 Parliament attack case. A small minority of intellectuals, lawyers, and activists have been vigorously pursuing his case, dubbing the death sentence against him as mockery of justice.
Currently his clemency petition lies pending in Rashtrapati Bhawan. Kalam had steered clear from meddling in troubled waters, perhaps because he has understood the complicity of case. In fact he is fed up of leading ghettoized existence in jail and disillusioned with the system of justice prevailing in this country. Now the incumbent Pratibha Patil has to make a call. But the question is, can we Kashmiris afford another Maqbool Bhat?
We have the knack of waking up at eleventh hour, when we are left with few options, and cant really avoid the inevitable. So, are we waiting for Guru to cuddle gallows? Plotters are vociferously raking up Guru issue each day on every platform. Hapless Guru may be willing to embrace death for a greater cause, but his 8-year-old son Ghalib needs him, so does the Kashmiri nation. Let’s wake up, lest we lose him.
S Zafar Mehdi is a journalist with Hindustan Times, New Delhi. He can be reached at email@example.com.