Hanged by stealth

Print edition : March 08, 2013

Funeral prayers for Mohammad Afzal Guru at a road on the outskirts of Srinagar on February 9. Photo: REUTERS

Afzal Guru (right) with Shaukat Hussain (left) and S.A.R. Geelani (centre) at the Patila House courts in New Delhi. A file photograph. Photo: Sandeep Saxena

Tabassum, Afzal Guru's wife, at the launch of a signature campaign in Sringar on October 12, 2006, to galvanise public opinion in support of Afzal, who had been awarded the death penalty. Photo: NISSAR AHMAD

Ghalib, Afzal Guru's son, sitting on a dharna demanding the repeal of the capital punishment given to his father, in New Delhi on October 4, 2006. Photo: PTI

The secret execution of Afzal Guru, convicted in the Parliament House attack case, makes a mockery of the constitutional principles of the rule of law and due process.

UNTIL February 8, the jail doors of Kashmiri prisoners in the Central Jail at Tihar in New Delhi were opened at 6 a.m. They, together with the death-row prisoner in Jail No.3, offered early morning namaz before going back to their respective cells. On the morning of February 9, however, only the jail door of the death-row prisoner, Mohammad Afzal Guru, was opened, and he was asked to offer namaz alone. He was then informed by the jail officials of his imminent hanging. The initial surprise soon turned into shock and disbelief, they said. The other prisoners, not knowing what was happening, kept calling the jail staff to open their doors so as to join the namaz. Soon, the prisoners realised something was amiss and kept still even as preparations to hang Afzal Guru went on outside.

Once Afzal Guru offered his namaz, a jail official read out the death warrant to him. One of the officials, whom Afzal knew well, wept. Afzal was seen pacifying him from a distance, as though telling him that he knew the official was helpless. Afzal then wrote a letter for his wife and walked up to the gallows. A hangman had been specially brought from elsewhere two days earlier. Afzal’s body hung for half an hour, before he was declared dead at 8 a.m. He was buried within the jail premises, next to the grave of Maqbool Butt, the founder of the Jammu and Kashmir Liberation Front, who was hanged there in 1984.

With the hanging of Afzal, the curtains finally came down on the Parliament House attack case of December 13, 2001, which still remains shrouded in mystery. Five terrorists entered the Parliament House complex on that day and were killed in an encounter with security personnel. The shootout resulted in the death of nine persons and injuries to 16. Afzal, who was not present during the encounter but was found to have provided logistical help to the terrorists in Delhi, was apprehended in Srinagar, Jammu and Kashmir, and brought to Delhi within a few days of the attack. The trial court and the Supreme Court found him guilty and sentenced him to death.

Afzal was close to being executed once, in 2006, when his death warrant was prepared and the date of hanging was fixed on October 20 that year. At that time, he had refused to file a mercy petition himself. Once the date was fixed, however, his wife, Tabassum, was persuaded to file a mercy petition on his behalf with President A.P.J. Abdul Kalam. This effectively stayed his hanging indefinitely as the Ministry of Home Affairs (MHA) took an inordinately long time to process the petition and send the necessary recommendation to the President. On November 8, 2006, Afzal himself submitted another detailed mercy petition. This was subsequently published by his well-wishers so as to dispel misgivings about his alleged involvement in the Parliament House attack and the serious lacunae in the trial and appeal, which resulted in his unjust conviction and death sentence.

The recommendation to reject the petitions was sent to the President only on August 4, 2011. The then President, Pratibha Patil, did not act on it and it became part of the pending mercy petitions to be decided by her successor, Pranab Mukherjee. Following a fresh submission of the recommendation by the MHA on January 21 this year, Mukherjee rejected the petition on February 3, but kept the decision under wraps until Afzal was hanged on February 9. Indeed, secrecy has become the hallmark of Mukherjee’s decisions when he has to reject the mercy pleas of those accused of terrorism or conspiracy to carry out terrorist acts. There may be a case for keeping the MHA’s recommendation to the President secret until the President takes a decision on it, but once he decides, he is under no obligation to conceal it from the public. On the contrary, under the Right to Information Act, the President’s Secretariat is duty bound to proactively reveal such information without delay.



Shrouded in secrecy

Secrecy shrouded the decisions to reject the mercy petitions of Mohammed Ajmal Kasab, the lone convict in the 26/11 Mumbai terror attack case who was hanged on November 21 last year, and Afzal Guru. In both cases, the government made it clear that it did not want to extend them the privilege of seeking judicial intervention to stay their executions, citing various legal grounds. To many neutral observers, this clearly suggests the government’s lack of confidence in the legitimacy of its mercy decisions. It was thus hardly surprising when the President’s Secretariat decided to discontinue furnishing on its website information on the status of mercy petitions before the President.

A hanging, when executed in secrecy, becomes an extrajudicial execution in which the MHA, the President and other constitutional authorities are complicit. The news of the President’s rejection of his mercy petition was conveyed to Afzal only an hour before his execution. His wife, residing in Kashmir, was informed through Speed Post. The letter reached her two days after the execution. Prime Minister Manmohan Singh, according to reports, expressed his unhappiness over the non-communication of the decision to hang Afzal to his wife and son well before the execution.

The Jammu and Kashmir government, which was duly informed by the MHA about the imminent hanging on the night of February 8, did not deem it its responsibility to inform Afzal’s wife well before the hanging. Instead, it began preparations to enforce a curfew before the news of the hanging reached the Valley.



Misplaced faith in the system

In contrast to the deep distrust by the Indian state of its own laws, norms and the institutions which emphasise transparent decision-making, Afzal Guru had implicit faith in the office of the President and the government’s handling of mercy petitions. Indeed, he ignored repeated requests from his close friend, Professor S.A.R. Geelani, and his lawyer, N.D. Pancholi, to give his consent to pre-empt his secret hanging by the state by seeking early intervention of the Supreme Court. Afzal’s stock reply to them, who met him a month prior to his hanging, was that what happened to Kasab would not happen to him because, unlike Kasab, he was an Indian and he had the support of people in his State and elsewhere in the country. Afzal also believed that because a Supreme Court judgment was expected in the case filed by other death-row convicts against the inordinate delay in rejecting their mercy petitions, which might have a bearing in his case as well, the government would refrain from hanging him.

One can imagine the sense of betrayal he must have felt prior to his hanging; yet, according to reports, he completed the required formalities by displaying exemplary maturity and a philosophical attitude cultivated by his years of reading and reflection in jail. Both Geelani and Pancholi told Frontline that he had developed a keen interest in both Indian and Western philosophy and read books by thinkers ranging from M.N. Roy to Noam Chomsky.

Afzal claimed in his mercy petition that he had become involved in the conspiracy to attack Parliament House without his knowledge, intention or willingness. A close study of his mercy petition reveals that it was indeed true.

In his second Shahid Azmi Memorial Lecture delivered in New Delhi on February 9, the well-known civil liberties lawyer Yug Mohit Chaudhry said: “Judicial errors, fabricated evidence, executive chicanery—it is the combination of these three which results in a death sentence being executed. There cannot be a better demonstration of this than the facts of investigation, evidence and trial in Afzal’s case.” (Shahid Azmi was a 32-year-old fearless young lawyer in Mumbai, who was shot dead by some persons at his office on February 11, 2010. Having been falsely imprisoned once, he studied law while in jail and represented those who he believed were falsely implicated in terror-related cases.)

Afzal was a surrendered militant; he had once crossed over to Pakistan and returned. He alleged that the Special Task Force did not allow surrendered militants to live a normal life and forced them to work as informers. He also alleged that the STF arrested and detained his younger brother, Hilal, until Afzal was sent to judicial custody so as to force him to cooperate with the investigation.

Afzal also alleged that he was forced to implicate S.A.R. Geelani in the conspiracy to attack Parliament House, but he refused to do so. His allegation that it was the STF that introduced him to the slain terrorist, Mohammad, and asked to help him to find a house and buy a car in Delhi went completely uninvestigated. His right to a fair trial was prejudiced right at the start when the Special Cell of the Delhi Police apparently forced him to confess about his role in the Parliament House attack, incriminating himself during a televised media conference on December 20, 2001.

The Supreme Court held in its judgment that Afzal’s confession, extracted in violation of procedural safeguards guaranteed by the statute, could not be treated as admissible evidence.



Lack of legal representation

Indeed, Afzal’s lack of legal representation during the investigation and the trial was the biggest lacuna in the case. As evidence is sifted and weighed in the trial court, the absence of effective legal representation can result in gross injustice to the accused if he is innocent. He gave a list of four lawyers, one of whom could represent him, to the Designated Judge under the Prevention of Terrorism Act (POTA). The judge recorded that two of the named lawyers refused to represent Afzal but was silent on the other two.

The court-appointed amicus curiae, Neeraj Bansal, was not willing to defend Afzal. Afzal himself told the court that he was not satisfied with Bansal. Although the Supreme Court reasoned that this lack of legal representation was not a serious infirmity, Afzal, in his mercy petition, sought to demonstrate how the very basis of his conviction was founded on the facts that the material witnesses were not challenged in cross-examination and that no questions were put to them in order to disprove their allegations against him.

The prosecution’s case rested largely on the fact that its witnesses were never challenged by Afzal’s lawyer. In his mercy petition, Afzal stated: “When my lawyer [Neeraj Bansal] had already expressed his desire to withdraw from the case and he never took any instructions from me there was no question of him cross-examining the prosecution witnesses diligently.”

Afzal added that if the Supreme Court did not believe his so-called confession, then the court should have also not believed the prosecution version that he had identified the deceased terrorists. In particular, he disputed the seal of authenticity affixed by the Supreme Court on the disclosure statement, which was almost similar to his confessional statement.

In the disclosure statement, Afzal was apparently forced to admit details of his involvement in helping the terrorists—who were killed in the encounter—in buying mobiles, motorcycles and explosives. He added that his advocate did not cross-examine Prosecution Witness 66, Mohan Chand Sharma (Special Cell, Lodhi Road), at all even though Sharma was one of the most important witnesses and he had coerced him into making the disclosure statement.

Afzal alleged that out of 80 prosecution witnesses, only 22 were cross-examined by Bansal, and that Bansal would sometimes give only one suggestion during his cross-examination. He claimed that even though he was the most vulnerable person, he had no legal assistance for no fault of his, except that he was too poor to afford a lawyer.

While the gaps in the investigation and trial were glaring enough, the Supreme Court’s judgment in Afzal’s case was indeed a pointer to why he should not have been hanged. The prosecution argued that Afzal was responsible for the action of the five terrorists who had actually attacked Parliament House and were present at the scene of the crime. The court specifically rejected this argument, saying Afzal was a mere conspirator who remained in the background. The court also acquitted Afzal of the charges of belonging to any terrorist organisation.

Yet, the court confirmed the death sentence of Afzal because the incident had shaken the entire nation and it was the only punishment that could satisfy the collective conscience of society.

In its judgment, the Supreme Court also added that Afzal, as a surrendered militant, was bent upon repeating acts of treason against the nation and was a menace to society. The argument of collective conscience has no legal basis and is easily questionable even logically.

However, Afzal’s mercy petition reveals an entirely different side of him. He wrote to the President that if he was granted clemency he would pray that both Indian and Kashmiri people learn to understand each other and live their lives watching their children grow up as good, kind and compassionate human beings. He said he also believed that the attack on Parliament House did not serve the cause of the Kashmiri people and that he was genuinely sorry for the family members of those who died doing their duty to defend Parliament House. He said he had no personal enmity towards the nine persons killed or the 16 injured.

In the sentencing process, the expression of these sentiments would have been construed as remorse and considered a mitigating factor in favour of life imprisonment. It makes one wonder whether the judicial system was bent upon sending at least one person to the gallows for the attack on Parliament House despite the absence of evidence beyond reasonable doubt.



Response to the hanging

The response to Afzal’s hanging only reinforced the stereotypes that influenced the discourse preceding his death sentence. Fringe elements in society could not tolerate the voices of protest against Afzal’s unjust hanging. The protests and counter-protests at Jantar Mantar against Afzal’s hanging in New Delhi on February 9 amply brought this out.

An alarming pattern that has emerged is the framing of any form of dissent against the state within the discourse of “national security” and the consequent branding of protesters as “anti-nationals”. This majoritarian and highly exclusionary discourse of nationalism is further accentuated by reactionary, right-wing forces attacking peaceful protesters, in several instances in tacit collusion with the police. The attacks on a group of peaceful protesters condemning the execution of Afzal Guru at Jantar Mantar on February 9 need to be located in this context.

Much of the right-wing reaction to protests is also designed to derive maximum political mileage by displaying a form of militant nationalism through the electronic media. This project of national security also calls upon the minorities, in this case the Kashmiri protesters, to prove their allegiance to the state time and again while simultaneously questioning their democratic right to dissent.

Speaking to Frontline, Karen Gabriel, associate professor of English at St Stephen’s College in Delhi, who is also with the Centre for the Study of Gender, Culture and Social Processes, outlined the larger implications of heavy policing of the sites of resistance: “There is heavy militarisation of the civil space with noticeable police presence in public spaces of protests, implying state-imposed coercion. The recent developments clearly point to the fact that the ruling UPA [United Progressive Alliance] is implicated in a kind of communal and corporate fascism which by extension uses force to de-radicalise students. The UPA now wants to align itself with the reactionary Right.”

Afzal’s hanging will hopefully lead to serious introspection within civil society about the ethics of death sentence and the importance of dissent in a democracy.

With inputs from Sagnik Dutta

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