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CRIME AND PUNISHMENT: Should Mohammad Afzal Guru be hanged?
10/09/2006
By Ram Puniyani

As per the Supreme Court judgment, Mohammad Afzal Guru is to be hanged to death on 20th October 2006. Guru was one of the accused in the case of assault on the Parliament on 13 December 2001, in which, many a security personnel were killed. Guru was not found to be to be part of any terrorist outfit, nor did he play any direct role in the same. In the trial which took place the provisions of International Covenant on Civil and Political Rights had not been respected. Supreme court noted that there is no direct evidence of his involvement. The evidence was mainly circumstantial. All three courts including Supreme Court have acquitted him of the charges under POTA of belonging to either a terrorist organization or a terrorist gang. Court also noted that the evidence was fabricated. Most importantly he was not given any worthwhile legal assistance to defend him during interrogation. When Ram Jethmalani offered to be his lawyer the Hindutva goons attacked his office. One also recalls here that the lawyers offering to hold the brief of accused in 11 July 2006 Mumbai blasts were also threatened by Hindutva outfit, a real case of cowardly display of pseudo patriotism . At best Guru was facilitator in the crime and not a part of directly perpetrating the crime. Supreme Court notes, that "The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender." So does it mean that the punishment is being given to assuage the collective national conscience? One must add what is presented as this conscience is the consciousness of the section of dominant middle classes.

Many a Human rights activist of repute sat on a dharna demanding the commutation of the death sentence, to life imprisonment. They issued appeals to the same effect and also have floated the petitions for clemency. Not to be left behind another section of activists have floated counter petitions demanding nothing short of death penalty for this terrorist. In various talk shows the angry audience is hooting down those talking of the facts of the case and asking for leniency in the light of the holes in the story built by the police authorities. There are two major questions involved in the case. One, that death penalty should be given in the rarest of rare cases, and two when world over the brutal capital punishment is being done away with, should we stick to it. The other peripheral issues which are trying to undermine the basic issues are the hysterical nationalism of Hindu right and sections of society who cannot think that the crime of those accused of acts of terror also needs to be proved before they are punished, and that the punishment has to be commensurate with the crime. For them once Supreme Court has ruled the doors for clemency are closed.

The base on which Supreme Court has given the judgment has been built by the police with methods which are questionable, which have also been reprimanded by the court in this case. The argument on the other side is that if Guru is not hanged it will be an insult to those who have laid their lives for defending the parliament. The other question, which has got mixed up this, is the fate of peace process, which is going on in Kashmir and South Asia as a whole. In the visual media debates, one can see the hysterical nationalism oozing from every pore of Hindu right wing and some others. Some Muslim spokespersons of this or the other party are finding this as the best opportunity to wear their patriotism on their sleeves by taking blinded firm positions against any consideration of clemency. This became most obvious when Mukhtar Abbas Naqvi of BJP went to the extent of denying that Bhagat Singhs kin can ever make a clemency petition in this case, to the loud applause of the studio audience. As matter of fact Bhagat Singhs kin Prof Jagmohan Singh and Anand Patwardhan, the noted documentary film maker and rights activist, had issued the appeal carried by the media. It is unlikely that the BJP spokesperson would have missed it; any way some times even ignorance is bliss to pursue once political assertions! The response of letter writers in the newspaper columns is no different. Most of them demanding the blood of this 'terrorist'! Nothing else can reflect the state of social common sense in the society. By now communal violence has become passť in the society. It is justified to the extent that those involved in this are neither punished nor even looked down upon. On the other hand any body remotely linked to acts of terror can be hanged without any pangs of conscience, communal patriotism at is worst is on display.

While Supreme Court deserves all the respect, one has to see that the primary investigation done by the police, whatever its flaws, forms the base of the judgment. When that investigation has holes, should it be accepted as it is presented? When the primary culprits are either dead are some of them absconding, can 'the whole truth be out'? Or is it that somebody has anyway to be punished to quench the thirst for revenge, and who better than the one who has a Muslim name and happens to be from Kashmir. Kashmir has been reduced to 'our' real estate, where we are putting lakhs of our army to deal with couple of thousand of militants! Surely if there is one Indian soldier for every seventh Kashmiri, no wonder Kashmiris will see it as an occupation army. After having said that, the punishment being meted out to Guru is not commensurate with the crime done by him, one will also endorse that the very notion of capital punishment is nothing but barbarism, and it does not become dignified if it is given to a terrorist. Many of those otherwise swearing by non violence are so communalized at core that they are at the forefront of some or other moves demanding the hanging of Guru.

One can understand that for RSS and its affiliates this is the golden opportunity to display their patriotism, partly also to wash the sin of accompanying the terrorists to Kandhar by one of their ministers. One can also understand the success of RSS in communalizing the social thinking to the extent that now truth and humane values have ceased to matter in the face of communal thinking. Justice is being converted into revenge and punishment is meant to further communalize the society rather than a means of reform, rather than being an occasion to introspect as to why such crimes are going on. Surely no one is born a terrorist and no one likes to resort to these means by choice. What are the deeper circumstances due to which these acts of violence are taking place needs to be given a thought. One understands that terrorism is a mere symptom of the underlying disease, which has roots in injustices somewhere. One understands the terrorism cannot be finished by killing the terrorists. For that the underlying causes have to be addressed.

The double standards of our society and legal system are becoming glaringly apparent. The perpetrators of communal violence not only get away with their crimes but also some times they get promotions, as in the case of Ramdeo Tyagi of Maharashtra. Hundreds of police officials who have been named in the inquiry commission reports are enjoying the 'fruits' of their crimes of omission and commission. Thackeray and Modi, who have been the main architects of Mumbai and Gujarat riots respectively, could not even be touched by the long arm of law. On the contrary they landed up increasing their political clout after presiding over these genocides. While the perpetrators of Mumbai riots are having a gala time the culprits of subsequent bomb blasts are being meted out the punishments due to them. The general impression is gaining ground in the society that by now there are two legal systems in the society. One for the followers of Hindu communalism, where killer of Pastor Stains, Dara Singh, is spared the noose and is hailed as Hindu Dharma Rakshak (protector of Hindu faith), the perpetrators of communal violence who get away with ease. The other one is for those who belong to minorities. In their case even the remotest association with the terror attacks is ground enough for hanging or the severest possible punishment.

In Kashmir, Indian army's role needs to redesigned, thousands of innocents have been tortured by this army, Chittsingpura is just a tip of iceberg. The hanging of Maqbool Bhat in 1984 did give a feeling of alienation and later a boost to militancy. Who do we blame for that? Those calling for a hangman for Guru surely are bent upon repeating the process. Nation can watch the hanging of those who have not committed the crime of such a severe proportion, but while hanging them what processes will be unleashed need to be seen overcoming the communal myopia. We must distinguish between the hysterical nationalism of the likes of those demanding the hanging and the humane nationalism wanting to call for reconsideration of the punishment meted out, to sooth the feverish pitch of communalized sections of society. This hanging will surely reinforce the perception of two sets of legal norms which are prevalent in the country.