Does Afzal Guru deserve to die?

 

Syed Zafar Mehdi

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 doing away with it. As sane minds would argue, sanctity to life should prevail over ‘eye for an eye’ approach. But legal hawks vociferously maintain that it is warranted in ‘rarest of rare crimes’. But, what constitutes these ‘rarest of rare’ cases, and who will decide that?

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. He was given capital punishment to ‘satisfy the collective conscience of society’, rather than on legal merits. His case is often in news. The last time it created furore when a firebrand legislator in J&K unsuccessfully moved a resolution in state assembly seeking clemency for him. J&K Chief Minister Omar Abdullah had also tweeted his support for Guru, after a similar resolution was passed by Tamil Nadu assembly for the killers of Rajiv Gandhi. The pro-India political parties in J&K are divided over Guru. Congress and BJP want him hanged but ruling National Conference (NC) and main opposition Peoples Democratic Party (PDP) are in favour of clemency.

As his mercy petition lies pending in corridors of Rashtrapati Bhawan, he has become a favourite whipping boy for right wing forces to score brownie points over their political adversaries. But, as civil activists argue, 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 “. A 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 trial 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. Its 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 P.M 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 Arundathi Roy adeptly vents her ire in following words, “I joined the protest demo at Jantar Mantar against Guru’s death sentence because I believe his 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. Perhaps aware of the repercussions, Kalam played safe, so did Patil. Now, it is over to incumbent Pranab Mukherjee. Guru, disillusioned with the system of justice, wants death. However, We the people want a final verdict be taken without further delay, keeping the legal and humanitarian interests ahead of narrow nationalistic and parochial interests.

Kazmi’s bail: A milestone, not the ultimate victory

Syed Zafar Mehdi

The incarceration of Mr. Ahmad Kazmi, a veteran journalist and political commentator, in connection with February 13 Israeli Embassy car blast case, has yet again exposed the murky underbelly of India’s police system. The routine vilification of people from a particular section of society is nothing new in this democratic secular republic. In Kazmi’s case, however, it assumed uglier proportions. Today, as he walks out on bail, after serving eight long harrowing months behind bars, it is certainly a big day for his family, and a moment of vindication for all of us, who believe he is only a pawn in a sinister game.

On a personal note, it is a small victory for me as well. From day one, as I tracked the case, I was convinced that he has been framed under dubious charges. As the plot thickened gradually and different versions began to float in air, I could see the glaring loopholes in the case. Repeatedly failing to file the chargesheet, police resorted to third-degree methods to extract confession from him under duress. His family and friends were bullied and intimidated. Phones were tapped and his house was put under surveillance. The Free Kazmi website was hacked. There was clearly more to it than met the eye.

On March 07, I was in office, doing routine stuff. Suddenly, news flashed that an accused in Israeli embassy car blast case has been arrested by Delhi Police’s Special Cell near Lodhi Road. The ‘accused’ happened to be an eminent Urdu media journalist, a noted commentator on Midde East affairs, who was often invited for debates on national television. My initial reaction was one of shock and outrage. The name sounded strikingly familiar. I dialed some of my sources and verified the details. I wanted to meet his family but it was already too late and I had to rush home from office.

The next morning, almost all the newspapers were replete with stories and pictures about his arrest. Most of them were lop-sided stories, and in all likelihood, ‘planted’ by vested interests. The loud-mouthed news anchors on prime time shows lost no time in inviting few self-styled legal luminaries, staging television trails, and declaring him a dreaded terrorist, Iranian under-cover agent, etc.

I was angry, outraged and disgusted. I wrote an article the same day for Iran-based IRIB, for which the ‘accused’ had worked earlier. The article was reproduced by many other publications. The idea was to counter the propaganda of the mainstream media, and throttle their biased narrative. It was heartening to see so many people come out in his support and demand fair trial and justice. The social networking sites were abuzz, and the show of solidarity was tremendous.

His family was shattered. His son, fresh out of college, was holding first press conference of his life, in Press Club lawns. Surrounded by some of the prominent journalists and civil society members, he managed to put up brave front, and answered all the uncomfortable questions, until he finally broke down. His face and voice were somewhat familiar. He turned out to be my junior from our boarding school. We met again few days later, at JNU, where both of us addressed a public meeting, organized by students at JNU. I was amazed how he had evolved in just few days. There were no more tears, but only strong resolve to fight for justice.

Soon, the campaign for justice intensified. Candle light marches and protest rallies were held at many places including India Gate, Jantar Mantar, Parliament Street, Okhla Head, Jor Bagh, etc. It spread to other parts of country like Lucknow, Mumbai, Pune, Hyderabad, Aligarh and even people in UK, Iran and some other countries joined in. Some young boys in UK did incredible job in keeping the ‘Free Kazmi’ site up and running. I remember how we used to coordinate at midnight to post stuff on it. The site was hacked and that was quite shocking for us.

I was moved when editors at Aljazeera English went out of their way to publish my article on the whole Free Kazmi campaign. Many people wrote words of gratitude to me after that. But, when another article of mine was published in Daily Times Pakistan, I found myself in the center of storm; I had mentioned cases of few Kashmiris alongside his case, because there were many similarities between them. The people, bunch of jingoists, who had earlier encouraged me to write, suddenly took out the daggers and attacked me.  The smear campaign against me was quite upsetting. But, I had to take it in my stride. Being journalists, we have to be ready for it always.

The campaign for justice continued, and more people joined in. A group of senior journalists and activists came together and formed ‘Syed Kazmi Solidarity Group’, which was a great move. We knew it was only a matter of time before he would be out on bail. The lies and obfuscations cannot muzzle the voice of truth for too long. Today, he is out on bail. Thousands of people went to receive him outside highly-fortified Tihar jail. But, he is not a free man yet.

Let’s make no mistake about it. It is a small milestone in the path, not the ultimate victory. The campaign will continue until he is acquitted. And, not just him, all those who have been framed under dubious charges, and are undergoing trails for the crimes they never committed. The fight is on, and it shall continue forever.