Winter is passing in Delhi, yet a certain sadness and disquiet clings to the air. A man in his early 40s is marched to the gallows. Bidding a final farewell to his jailors — companions of nearly a decade — he walks calmly, without slogans or calls of recrimination. He is denied the opportunity to meet his wife and teenage son one last time before he died. Many in the country celebrate his hanging as fitting — but delayed — justice for a man charged with conspiring to destroy India’s Parliament. Others are troubled that the man’s life was taken away in their names, even though they are not convinced that true justice was done to him.
The hanging of Afzal Guru on February 9 raises a thicket of debates — ethical, legal and political — about justice, law, democracy, capital punishment, and a strong State. What is the quality of true justice? Is it enough for it to be lawful, fair and dispassionate, or must it also be tempered with mercy?
For those of us convinced that India should join more than 150 countries of the world today which have abolished the death penalty, Guru’s execution only confirms many anxieties about empowering the State to punish with death. The first of these relates to the possibilities of judicial error. It is true that courts at three levels, including India’s Supreme Court confirmed Guru’s conviction. But doubts about the quality of evidence have also been raised by some of the country’s keenest legal minds.
The application of terror laws dilutes the standards of evidence required for conviction, and both the trial court and high court relied on custodial confessions to police officers in confirming Guru’s guilt. The high court’s unfortunate reference in its 2003 judgement to ‘the collective conscience of the society’ being satisfied by awarding the death penalty to the offender adds further to one’s unease, because the only legitimate reason for a court to award any punishment should be the fair application of the law to the evidence placed before it, not the appeasement of alleged majoritarian public opinion.
I cannot claim certainty that the sentence against Guru was unjust. But equally I cannot claim certainty that it was just. Two successive presidents held back from confirming his death sentence. The death penalty has a finality which cannot humanly be reversed or corrected, and its application in a case where legitimate and strong doubts persist, is profoundly problematic ethically.
The death penalty also unfairly targets people who are too poor or socially disadvantaged to access high-quality legal representation. It is not surprising that of the 13 people currently on death row in India, 11 were represented by legal aid lawyers. No wonder that Justice Krishna Iyer observed that ‘capital sentence perhaps has a class bias and colour bar’. Afzal Guru lacked effective legal counsel in the trial court, and this damaged his case irretrievably by the time it journeyed to higher courts.
Another argument for abolishing the death penalty is the belief that every human being, even those charged with the gravest crimes, should have the chance to reform. By all accounts, Guru was an exemplary prisoner, courteous, considerate and disciplined. In his interviews, he admitted to being drawn in his youth to militancy, but was disillusioned and surrendered. The dignity with which he went to his death shamed a celebrating nation.
The most distressing failure of official compassion and public decency was in denying Afzal Guru’s wife and teenage son the chance to meet him for the last time before his execution. In an interview to The Caravan in 2006, he said, “This year is the tenth anniversary of our wedding. Over half that period I spent in jail. And prior to that, many a times I was detained and tortured by Indian security forces in Kashmir. Tabassum (his wife) witnessed both my physical and mental wounds… She gave me hope to live. We did not have a day of peaceful living. It is the story of many Kashmiri couples. Constant fear is the dominant feeling in all Kashmiri households…We were so happy when a child was born. We named our son after the legendary poet Mirza Ghalib. We had a dream to see our son, Ghalib, grow up. I could spend very little time with him. After his second birthday, I was implicated in the case”.
The haste and secrecy of the execution also unconscionably denied him his last available legal resource, affirmed by the Supreme Court in the Kartar Singh case, to seek judicial review of the rejection of his mercy petition. The long delay in disposing his mercy petition was strong ground for judicial consideration for possible commutation of his sentence to life imprisonment. On the day he was hung, Afzal Guru had completed 11 years, one month and 17 days in jail, less than three years short of a life term.
The defence of the government for its secret hanging, citing fears of mass violence in the Kashmir Valley, is untenable. Not just his hanging, but the way he was executed, will long scar the souls of young Kashmiris. Assassins of Indira Gandhi and Rajiv Gandhi accessed full legal remedies available under the law of the land before their final hanging, and were allowed to meet their kin before their deaths, although the dangers of violent unrest by masses of their supporters were no less compelling at that time. A self-assured democracy could find ways to prevent and control violence, without sacrificing elementary public compassion.
Many believe that the belated execution signalled a strong and decisive State, especially to the ‘neighbouring country’. One glance at the daily reality of this neighbouring country will reflect the brutalising wages of years of ‘decisive’ politics of militarism and public vengeance. It is not a weak, but a stable, mature and confident democracy which can display compassion even to those we may believe have most wronged the country.
Harsh Mander is Director, Centre for Equity Studies
The views expressed by the author are personal