Click to play videoNew Delhi: On December 13, 2001, Parliament was attacked. Of all those accused, Afzal Guru was given the death sentence in October 2006, in a judgement criticised by many activists as being based on circumstantial evidence.
The Supreme Court had also stated that the collective conscience of the society would be satisfied only if death penalty was awarded to Afzal Guru.
For some, a death sentence for Afzal is not justified, but for others Afzal is the terrorist whose execution is India's symbol for its toughness on terrorism.
In Jan 2007, the SC drew the curtain on the Parliament attack case by dismissing Afzal's plea seeking review of his death sentence, saying there is no merit in his curative petition. Afzal's sole hope to keep away from the gallows lies with his pending mercy petition before the Prez.
The situation has come to the fore because the BJP released ads in Gujarat, asking for action to be taken against Afzal Guru. This was one of Modi's ploys to project the rival Congress party as being soft on terror and terrorists.
On the debating panel were Rajya Sabha MP and Editor-in-Chief of The Pioneer, Chandan Mitra; and senior lawyers of the Supreme Court, Harish Salve and Kamini Jaiswal.
The debate commenced on the BJP's ad campaign in Gujarat, which is being conducted despite the fact that Afzal's mercy petition is still pending before the President of India. This act has suggested that just for fanning Hindutva flames, the BJP is making a legal matter into a heavy political issue.
Chandan Mitra objected to the nomenclature of the issue: he refuted the claim that it was a legal issue, in the first place.
“The legal issue has been sorted out, the Supreme Court has upheld and reconfirmed the death penalty. There is no question of a legal issue,” he asserted.
Mitra went on to say the issue has become hugely politicised, for which transition he holds the Central Government responsible.
“We were told that this (Afzal’s death sentence) will be tackled after the UP elections. UP elections have come and gone and now it is the Gujarat elections. Now, we'll probably hear that something more is happening,” he said.
Mitra clearly harboured no illusions for the speedy carrying out of justice.
“The Home Minister says that it takes seven years to dispose off a mercy petition, on an average, so some excuse or the other will be given on political grounds, and this,” he said, “is why the issue has become political!
The question then was then raised as to the way the issue is being taken up now, with Narendra Modi converting a rally into a mob baying for the blood of the convicted, when his mercy petition is still to be heard by the President.
Advocate Salve explained that it was not a question of mob mentality, as it was of public outrage in general.
“The public outrage is because the Indian institution of democracy – Parliament – was attacked. The highest judicial institution has given him the death penalty. It is now for the Executive (to decide).”
But that issue of brandishing the fact that Afzal Guru is still alive becomes a rallying point for politicians cannot but leave a sense of disquiet as to the way politicians are exhorting the mob.
Salve agreed and suggested that the issue be not even called political.
“This is a communal issue through and through (and has been made so) by all political parties,” he stated.
“Everybody is communalising this issue and Modi has also done his part. It is reprehensible all around,” Salve asserted
He confessed to not being able to understand the lack of speed in carrying out any of the post-conviction processes.
“What is the relevance of the question of giving pardon to a person convicted of death got to do with UP elections? Or Gujarat elections? Why must it await any election?” Salve demanded.
However, the lawyer maintained that delaying the mercy petition was a political game by the UPA.
“If the petition is meritorious, the man needs to be put out of his misery and they must allow it. If the petition is not meritorious, it should be thrown out,” he said, decisively.
A niggling issue about Afzal Guru’s connections remains, though. The Apex Court has not found him to be part of any terrorist organisation, nor there is any direct evidence of his involvement in any banned organisation.
For that reason, many activists have criticised the judgement as being based on circumstantial evidence so there may remain a scintilla of doubt.
Harish Salve however was firm on one point – that delaying the processes was a part of a communal game.
“Put that man out of his misery! Say all right, we commute it to a life sentence, or we set him free. But delaying it smacks of communal politics! You don't want to take a decision either way!” he complained.
The point was raised that many believe Afzal’s death sentence, if carried out, would see Kashmir going up in flames, a clear instance of blackmail of the judicial process.
Advocate Jaiswal scoffed at that and said that it was generalising.
“That is not the logic every individual who has been given a death sentence,” she said, impatiently.
She also made the point that there is a large number of people who have been given the death sentence for years but who have been languishing in jail.
“Why is that not being made a political issue? Why is Modi so obsessed with Afzal? This is, of course, politicising the whole thing!” she exclaimed.
Some of the convicts sentenced to death have been waiting for their clemency petitions to be heard since 1992. Over 20 petitions are pending before President Patil, including four Khalistani terrorists, four associates of Veerappan and three who have been convicted for Rajiv Gandhi’s assassination.
A point was raised that Modi’s obsession with Afzal Guru was just to play the card of the Muslim enemy – a demonstration of yet another instance of Islamophobia.
But Chandan Mitra was vehement in shooting down the suggestion.
“This is how the issue gets communalised,” he said.
Mitra went on to agree with Salve that Modi was bandying Afzal’s terrorist card only because the attack on Parliament was an attack on the highest institution of Indian democracy.
“The Supreme Court fast-tracked the trial because it had to be brought to a quick conclusion!” said Mitra. “Exemplary punishment and exemplary rapidity had to be shown, and the man had to be brought to justice and preferably hanged yesterday!
“Instead, it goes on, it drags on! All kinds of issues are brought up. Circumstantial evidence is built up, and an attempt is made to say that the man was absolutely innocent! If so, let him go free!”
Another point raised was on the words of Afzal Guru’s judgement: “This incident, which resulted in heavy casualties, has shaken the entire nation, and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender.”
The implication that punishment has to be given to assuage national conscience rather than the presence of credible evidence seemed to go against all legal tenets. Why would ‘assuaging national conscience’ become a point for a Supreme Court judgement?
Harish Salve explained that death penalty is given in the rarest of rare cases.
“It's a question of sentence, not conviction,” he said.
“To say that it shocks the nation and the collective conscience of the people will be satisfied is relevant, not for holding him guilty, but for saying he deserves death sentence,” he said.
The question of ethics was raised, that Narendra Modi whips the crow into a blood-thirsty frenzy by brandishing Afzal Guru in their faces.
“These are ethical questions,” Chandan Mitra conceded, adding, “as long as they do not violate the Code of Conduct or the Code of Ethics laid down by the Election Commission, I don't see why we should sit in judgement over whether it was a lynch mob, whether they were baying for his blood, or whether it was simple rhetoric.”
Mitra was unfazed by the kind of politicking Modi has resorted to in his rally at Dhanera.
“This kind of thing has happened in India before and I'm afraid it will go on,” he said. “I don't think it is particularly different from anything else we've seen in different parts of the country,” he said, giving an example of ministers in UP who promised Rs 51 crores to whoever killed the Danish cartoonist who had sketched controversial caricatures of the Prophet Mohammad.
Mitra also felt that the issue had been handed to the politicians on a platter.
But what does Afzal Guru truly symbolise? That he is or has connections with terrorists? Or that he is a Kashmiri-Muslim a the end of the day.
Advocate Salve did not feel it had anything to do with Afzal Guru being a Muslim or being Kashmiri/
“It was everything to do with being guilty of a conspiracy to attack Parliament – the strongest message the terrorists wanted to send was by attacking Parliament,” explained Salve.
But, he said, “the moment you talk of his religion, you are injecting communalism and saying he is Kashmiri Muslim. Therefore, be soft (on him), or be hard (on him), both are wrong.”
Kamini Jaiswal feels that Afzal Guru’s religion is a sore point.
“It is not the activists (who are emphasising it), it is the politicians,” she said.
“Why has Afzal Guru become a political agenda and part of a political speech? It is because he is a Muslim. Why are they not talking of other criminals? Why are they not talking, for example, of people who killed Rajiv Gandhi?” she demanded.
Afzal Guru case is certainly a potent political and legal symbol.
SMS POLL: Should Afzal Guru be hanged?
YES: 85 per cent
NO: 15 per cent
CNN-IBN EDITORIAL
The hanging of Afzal Guru has, in a sense, become the clash of two different nationalisms in India. One is the nationalism which believes Afzal is a terrorist and must hang, the other is a nationalism that believes that the Indian justice system cannot take revenge, rather than deliver justice. In a society that is fast becoming polarised, it is perhaps inevitable that politicians should jump in to make divisions even sharper.
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