Dancing On A Grave

Let us make no mistake about the fact that 9th of February 2013 will be remembered as a black day in the history of this country. And if it is not, then our future is very grim indeed. Today the home minister as well as the leaders of opposition may be extolling the virtues of the Indian legal system and telling us how “justice has been done”, but tomorrow we will be hanging our heads in shame for perpetuating the grotesquely unjust system that culminated in Afzal Guru’s execution. Today we may be dancing on a grave in celebration, but hopefully tomorrow the dust will settle, and we will realize that burying truths and hanging a man does not substitute for providing justice, and certainly does not increase the safety of this country.

Having attended some of the hearings of the Parliament attack case in the Supreme Court in 2004, I also saw first-hand the illusion upon which the jubilant politicians have based their statements. It is true that Mohammad Afzal’s case went through many of the legal procedures and processes that exist on paper. And it is also true that from 2003 onwards— after the Parliament attack case had reached the Supreme Court—the four people accused of conspiracy received about the best legal representation possible at that time. It was only due to efforts of those lawyers and activists that three out of four lives were saved from the angry mobs baying for blood in the media and on the streets. But then again, if an innocent person is framed in a case by the Police, kept in jail for years on end and then finally spared from the gallows, one might be relieved, but one would hardly call it ‘justice’. However, this is happening almost daily in dozens of cases in our country, and perhaps for the reason of banality alone, people should be forgiven for finding it less remarkable than an execution.

The criminal justice system in India can be compared quite appropriately to a tall, labyrinthine, multi-storied building. And the prospect of negotiating its pitfalls without a competent and honest lawyer, and coming out with your life and sanity intact, is very dreary indeed. This is precisely why Sushil Kumar, the senior advocate who represented Afzal in the Supreme Court, had no hesitation in saying: “The record of the trial court and the High Court is so shoddy, that I can tell you frankly—this man did not get a fair trial”. Mr. Kumar further said that even in Kasab's case, the accused was provided a good lawyer right from the trial court onwards, and that the court records were much better than in Afzal's case.

The serious errors and omissions during the investigation and the prosecution of Afzal's case have been pointed out in much gorier detail by Arundhati Roy, as well as several other journalists and writers, so I will not dwell on them. Let us, for the moment, forget about the glaring lapses in the legal case against Afzal. Let us forget all the international evidence indicating that the death penalty does not serve as a deterrent. Let us forget the extremely arbitrary imposition of the death penalty in India, and the injustice of hanging someone ten years after he first went on death row. Let us simply examine whether Afzal's execution serves any purpose at all for protecting the 'security and integrity of our nation'.

Undisputed Facts

There are a few facts about Afzal that are not disputed by either side. We know that Afzal had crossed the LOC in 1990 and went to receive training at a militant camp. He returned after a short while and then surrendered at a BSF camp in Kashmir, and continued to report every week at the camp, as was required from surrendered militants. In the following years, Afzal was picked up by the Special Task Force and tortured on numerous occasions, the last time being one year before the Parliament attack. This fact has been corroborated by his medical records, by other witnesses, and also by DSP Davinder Singh—who, in a chilling interview to CNN-IBN in November 2006 has not only admitted to torturing Afzal, but also regretted the fact that they did not torture him enough and 'break' him.

Now, Afzal had said in interviews, and in statements to his lawyer and to the President, that he was actually forced to assist Mohammad (leader of the five terrorists who attacked Parliament) by the STF itself. But even if we are to disregard his statements, and accept the official version of events, it is undeniable that a surrendered militant was extra-judicially detained and tortured by the STF, and thereafter came to be involved in some capacity in a terrorist plot. Is it not important for us to know why Afzal was tortured in the first place, and what role this repeated torture played in precipitating subsequent events? Even if we assume that he wilfully became part of the plot to attack Parliament, is it not important to know if humiliation or torture changed his will between 1990 and 2001? Is it not important to know how many other people are being dealt with in a similar way by the security forces in Kashmir and elsewhere, so that we can prevent incidents similar to the Parliament attack in the future? Is the “collective conscience of the people” interested in truth and ensuring peace in society, or simply in revenge and an endless cycle of violence?

Of course, the collective conscience of the nation doesn't have only its blood-thirsty citizens to blame for this replacement of truth with hysteria. It shares the blame with a rapidly growing media, which thrives on the vicious cycle of misinformation driving prejudice, and prejudice in turn driving misinformation. A media that had no qualms about telecasting a forced confession in the form of a 'docudrama' before the trial began, and again while the verdict was awaited. A media that successfully bombed the concept of a fair trial and made journalistic ethics look like mere fragments of glass on a sidewalk. A media, that in spite of all this got away scot-free, and in fact received accolades from the Prime Minister and home minister at that time. But many would still argue that the media and the politicians are only reflections that magnify the ugliest aspects of society, so the blame must first lie with those standing in front of the mirror.

The Politics of Bloodlust

This is why the accusation that Afzal's execution was “politically motivated” is not as much an accusation against the government, as it is against the people. It simply means that there is enough bloodlust in our society today to make an elected government believe that it can actually increase its popularity by indulging in a legally and morally untenable execution. After 35 clemency petitions being allowed in Pratibha Patil’s five-year term, Pranab Mukherjee has already rejected one petition for each month spent in office (a total of seven so far). The people who have most recently been consigned to the gallows (in a jail with only three hanging ropes) include four erstwhile aides of Veerappan. The oldest among them is 72 years in age, and all have been on death row for nine years. The implication of this tectonic shift between two Congress-loyalists is clear: according to the Congress’ calculations, the thirst for blood is increasing, and there are electoral rewards to be reaped from satisfying it. The BJP’s calculations, of course, are better known, and paint an even more morbid picture.

However, Afzal’s case is not simply the result of a change in stance on the death penalty. The manner in which the execution was carried out reeks of a toxic mixture of communal politics and callous inhumanity. Not only did the government supersede other death-row convicts (building on a dangerous precedent set by Kasab’s case) in Afzal’s hurried execution, but it also denied him the legal right to a judicial review of the President’s decision, which came six long years after the mercy petition was first filed by Afzal.

Even when Satwant Singh and Kehar Singh’s death sentence (for conspiring to kill Mrs. Indira Gandhi) was carried out in 1989, their families were brought to Delhi and allowed to meet them one last time. And that was in an extremely vitiated atmosphere, at a time when the problems in Punjab were far from over. In this case, Afzal’s family got news of his execution by way of jubilant statements on a television, after he had already been executed. The government then lied about the timing of a letter sent to inform the family through the new-age medium of speed-post. Perhaps it never occurred to them that if they were going to lie in any case, they might as well have lied about a phone call. “We called, but nobody answered” may have been better than saying “We sent a letter two days ago because the jail manual told us to”. But hey, these mistakes happen while managing the biggest democracy in the world, and they can always be fixed by imposing a state-wide curfew and banning all use of the internet and TVs so that nobody gets to know. What are the 700,000 troops posted in Kashmir for in any case?

This saga of shameless indignities— each bigger than the previous one— can only be explained by two hypotheses. One— that the functionaries involved in all of these decisions were truly callous and stupid enough to have not considered the implications of any of their inhuman actions, which range from curfews to delayed letters, to illegal arrests of journalists, to the banning of Facebook URLs related to Afzal. Or two— that in preparation for the 2014 elections, the Congress has decided that India’s growing, jingoistic middle-class accounts for a lot more votes than those of the Kashmiri Muslims and their sympathizers put together. Even the concern of triggering unrest in the valley, which is what had held up Afzal’s execution for the last six years, was casually brushed aside by a government whose Kashmir policy increasingly resembles the words from a British imperialist poem written after the conquest of Rhodesia in 1894:

Whatever happens we have got 
The Maxim Gun, and they have not.

With the uniformed men being the Maxim Gun, in this case.

We need to realize that it is in the interest of the media as well as the politicians to fan flames and rouse the passions of a majority against a minority. But in order for us to feel safe and secure (not to mention vaguely civilized), we need true justice and a rule of law that is not biased against any section of society. There is a reason why even a Congress ally and national politician like Omar Abdullah was forced to say: “I would have preferred that the execution had not happened…Kashmiri people may not have identified with Maqbool Bhat, but they will Identify with Afzal”. The reason is that Afzal’s story of torture and harassment at the hands of security forces, is shockingly similar to that of thousands of other Kashmiris. Afzal was simply the tip of an iceberg of injustice that continues unabated in the valley, as well as other parts of India. Burying the tip will not protect us from the anger brewing beneath the surface. That anger can only be pacified by curbing atrocities and providing justice. If the atrocities continue, so will their repercussions, and the inevitable loss of innocent lives caught in the crossfire. And in that macabre process, politicians will win elections and the media will gain TRPs, but all that we will be left with, will be the choice of which deaths to mourn and which to celebrate.

The author is a final-year PhD student at Oxford University and assistant editor of freespeechdebate.com.