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Monday, 25 February 2013

Threat to Indian Constitution is more serious from executive having scant respect for law By Irfan Engineer


Threat to Indian Constitution is more serious...
Irfan AEngineer 12:58pm Feb 25
Threat to Indian Constitution is more serious from executive having scant respect for law
By Irfan Engineer
It is not in dispute that Afzal Guru was a surrendered cadre of JKLF. He was dissatisfied about the situation in Pakistan Occupied Kashmir and he surrendered to the Border Security Force. Once a person surrenders to security forces, he takes a calculated risk of displeasing and even facing threat to life from other gun wielding cadres. Gun wielding fighters fear that the surrendered cadre would give crucial information about them and their organization and also want to make an example of the surrendered persons to deter others from surrendering. Afzal Guru might have calculated the risk he runs and still decided to surrender. A person surrenders when he loses hope of success of the mission of the organization he was working with or realizes that the mission was not worthy after all. It is also not in dispute that Guru after his surrender did odd jobs and completed his graduation.
The police version and Afzal Guru's version thereafter differ. Police version broadly is that Guru met one Tariq, who introduced him to Ghazi Baba and who in turn motivated him to arrange safe hideout for those who had planned to attack Indian Parliament. Afzal Guru was paraded by police before the electronic media and his "confession" was broadcasted. Supreme Court frowned on such practices and did not rely on the "confession" under the circumstances.
Guru, on the other hand, in his further statement under S. 313 of the Cr.P.C. before the trial court, and in his letter to the Home Minister states that he was introduced to those who later attacked the Indian Parliament by DSP Dalvinder Singh and coerced to arrange for their stay in Delhi, and while in Delhi, he constantly received calls from Dalvinder Singh. The call records were never investigated and never verified. Guru writes that he could not present his side and contest the evidence being adduced in the trial court as his family was under threat.
The Apex Court also accepts that Guru did not get a lawyer to represent his case. Supreme Court is on record stating that Guru's conviction is based on circumstantial evidence. The death sentence was awarded to satisfy the collective conscience of the nation. The persons who attacked the Parliament were killed in the operation and Ghazi Baba was never arrested.
National Human Rights Commission has stated that it was violation of human rights of the family members of Afzal Guru to have executed him without even intimating the family before his execution and for not permitting his family members to meet Afzal Guru for one last time before his execution. It is violation of fundamental right to practice one's own religion by not allowing the family to perform last rites of the departed according to their religion and not to hand over the body to the family.
Kashmir has been gagged since the morning Guru was executed. Kashmiris cannot express themselves – their anger or appreciation. Their children have no milk. News and internet access, SMSs all were blocked. No democracy, no trust and no freedom for Kashmiris. Only the CM of Kashmir was allowed to talk to the media. All because a Kashmiri was accused of waging or abetting waging of war with Government of India, tried on circumstantial evidence and executed without informing his family before his execution to satisfy the conscience of the nation as voiced by Hindutva brigade. The only other person executed in this manner after promulgation of Constitution of India was a Pakistani National – Ajmal Kasab. The Britishers allowed parents of Bhagat Singh to meet him for one last time before his execution, even though he was also considered by them a terrorist waging war on the Colonial rule.
Threat to the Government of India and the Indian Constitution is not serious enough from terrorists – as they can be handled by security forces having far more superior force and superior organization and power of public opinion of law abiding Indian citizens. Threat to Institutions of democracy, Indian Constitution and the rule of law is far more serious from the executive having scant respect for the rule of law clothed with unaccountable authority and from ideologies that purport to be majoritarian nationalism having scant respect for justice.
The Issue of Justice:
Revenge and the urge for blood was medieval notion of justice. Eye for an eye and tooth for a tooth is not justice. Instilling fear and creating awe for those in power has not deterred crimes. For those deprived or those nurturing a sense of injustice or experiencing occupation fight regardless of consequences and with whatever means they can command. Colonial power did not deter Indian freedom fighters and they were ready to pay any price – even their lives. It is the structures and institutions that we build which are fair and just towards all and accountable to the citizenry that help reduce crimes in the society.
Justice does not lie in retribution and inflicting same or more pain or loss to what a person has inflicted upon others and deriving satisfaction from the pain that that person is suffering. It is an inhuman instinct. Justice lies in restoration of the victim of crime back, expressing solidarity, and as far as possible, normalizing the life of the victim and helping her to come to terms with the wrong done to her, and ensuring that the wrong would not be repeated. Family members of the five security personnel, a parliamentary guard and a gardener who died during the attack on the Parliament may derive satisfaction from killing of persons involved in the attack (with sufficient degree of certainty). However, those attacking the Parliament were seeking their own revenge (certainly an abominable and condemnable action) for somebody else, and so on! Kashmiris might perceive injustice in the manner in which the trial was held and the entire execution was dealt with and all of them were made to suffer house arrest for days following Guru's execution. Retribution is a never ending cycle and does not bring closure. Every closure for one is point of revenge for another for the perceived injustice. 
Closure for the relatives of those killed during Parliament attack would be more meaningful if their economic lives had been restored by the nation and helped them to come to terms with the questions disturbing their minds like, "why my near and dear one?", "whose fault?", "where did things go wrong?", "why did the attack happen?", "what motivated the attacker to target my near and dear one?", and mitigated loss of their near and dear ones as much as possible. Closure for Priyanka Gandhi for her father's assassination was not sending S Nalini Sriharan to gallows but meeting her in prison and seeking answers to these questions and finally forgiving her. Nalini was spared death row.
But Justice also means restoration of the perpetrator of the crime back to normalcy and to help the person repent and reform and till the time there is genuine repentance on the part of the perpetrator, putting such restrictions and taking such measures which would restore the perpetrator as a socially useful human being. If there is no repentance then society ought to be protected from the perpetrator by isolating the perpetrator.
Subjectivity in death penalty:
Others also attacked Constitutional Institutions and functionaries, including Nalini and Rajoana who killed the then Chief Minister of the Punjab. Those vociferously demanding Guru's execution are silent on speedy execution of sentence to Rajoana and Nalini. There is no demand that Babu Bajrangi and Maya Kondnani convicted for brutal rapes and murder of many in which even foetus was not spared the brutality be awarded death sentence. Death sentence therefore is not a demand for justice, but a political demand to garner votes, to overawe a community or a section and demonstrate the power and patriarchal values of might, strength and masculinity of the state power and those who wield power. Masculinity, military might and notion of power come with the ideology of 'might is right'. But there are limits to 'might is right' arrogance. The notions of crusades invoked by the then US President after attack on twin towers on 9/11 in which 3000 people (who were citizens of various countries) were killed, led the US to war with Afghanistan and Iraq killing over 6 lakh people and injuring millions. The war has not been won as yet by the mighty and will never be won until justice is done.
The march of history has been from more brutal and violent societies to more humane, inclusive and less violent societies; and from authoritarian to democratic states. The objective of punishment awarded by the society to the delinquents and non-conformists too has evolved from that of retribution to deterrence and reformation of the delinquent. With the strengthening of democracies, there is increasing culture of tolerating dissent and differences. Sanctity of life is increasingly accepted and believed that society does not have the right to take away anyone's life. Disproportionate number of people from marginalized sections of the society – poor, ethnic and religious minorities and lower castes are handed down death penalty. For example, 41% of death row inmates and 34% of those executed in US are African Americans though they constitute 12% of US population. There is only one remedy – neat burial of death sentence as a punishment.