Miscarriage Of Justice

Syed Ali Safvi

The question is not whether Afzal should be hanged or not, but the real question is, has Afzal Guru been given a fair trial. Did he actually deserve the death sentence given the degree of his involvement in the crime.

Once again Kashmiris and the rest of India are up against each other. Reason being Mohammad Afzal Guru’s death sentence. A debate which has found a place in every household is whether Afzal should be hanged or not.

Surprisingly, it is for the first time in the Valley that mainstream politicians and separatists are on the same side of the debate. Every section of society, lawyers, doctors, students, intellectuals, in Kashmir have demanded clemency for Afzal Guru. For the Valleyites, Afzal has become a big unifying factor. The Valleyites know, if Afzal is hanged, situation in the Valley will deteriorate.

Those sitting in the palatial bungalows in Delhi oblivious of the ground situation in Kashmir cannot envisage the ramifications if Afzal is sent to gallows. They have only come to know about Kashmir through Delhi-based newspapers and TV channels, which unfortunately have never reported the ground realities of Kashmir. They don’t know what exactly is happening in Kashmir.

One fateful morning, on February 11, 1984, Maqbool Bhat was hanged and the consequences are before us. Now, India wants to repeat the same mistake. Indian leaders want to gift one more martyr to Kashmiris. Martyrdom is the ultimate aspiration of a militant because it makes him eternal. If Afzal is one of them what more should he ask for?

When Maqbool Bhat was hanged, he became a martyr, a hero, and a legend. Thousand of Kashmiris inspired by Bhat went across the border for arms training. Maqbool Bhat’s hanging became a turning point which shaped the contemporary history of Kashmir. Now, Indian leaders want to take Kashmir back to the period of late 1980’s and early 1990’s.

The families of the victims, who died in the December 13 Parliament attack, are demanding that Afzal’s mercy petition should not be entertained and he should be hanged. No one can share the sympathies with them as much as Kashmiris because only they can feel what a loss of a dear one means. The so-called independent media of ademocratic India has portrayed the whole state of affairs differently as if it is a tussle between the families of victims
and Kashmiris. The question is not whether Afzal should be hanged or not, but the real question is, has Afzal Guru been given a fair trial. Did he actually deserve the death sentence given the degree of his involvement in the crime?

Whether you like it or not, but the answer is NO.

There are various reasons which clearly indicate that Afzal was not given a fair trial. First, Afzal was not given a lawyer of his choice despite giving three applications for the same. Second, his case was fabricated and even Amnesty International and some lawyers of the Apex Court have confirmed it. Third, Afzal was not allowed to cross question the witnesses. Four, the statements and objections raised by him against the false statements were not recorded by the Apex Court. Five, all the accused (Geelani, Shoukat, Afsan and Afzal) were tried under POTA, which, however, does not prescribe death sentence. While Geelani was acquitted and the quantum of punishment was commuted from death sentence to life in jail for other two accused, the Supreme Court upheld the death sentence in case of Afzal Guru by falling back on IPC. Like other three accused Afzal was not present in or around the Parliament complex at the time of attack. Still, his case was treated differently. Had he been tried under POTA like other of his co-accused he would have got the sentence of life imprisonment at the most. But, mysteriously, the Apex Court had different thoughts even though it has categorically stated that “there is no evidence to show that Afzal Guru is a member of any banned
organization.”

According to Afzal’s statement he was mentally and physically tortured by Special Task Force (STF) personnel because they wanted him to work as a “spy”. He was coerced to join Special Operation Group (SOG). This aspect has been completely condoned by the court. Those who demand that Afzal should be executed must at least once go through the letter which Tabassum, wife of Afzal Guru, wrote in 2004. Tabassum clearly mentioned in her letter that
her husband wanted to live a normal life but STF didn’t allow him to. She narrates a poignant tale of the tortures her husband was subject to at the hands of STF and other security agencies. She even revealed the names of these errant troops. The fault of Afzal was only that he had surrendered. In other parts of the world it is the responsibility of the
forces to safeguard a surrendered militant, but Kashmir is an exception.

When he was unable to bear frequent tortures, Afzal left Kashmir for Delhi but STF followed him there. Dogged by poor fate he couldn’t save himself from the notorious STF personnel. According to Afzal, he met one Tariq in the STF camp who compelled him to bring Mohammad to Delhi. Mohammad is one of the executors of the Parliament attack.

What was Tariq doing in the camp and how he knew Mohammad? These are the questions which need to be investigated. But, the fact is that the law enforcing agencies didn’t give it a damn.

There is a need of an institutional change in the Indian judiciary system as far as the capital punishment is concerned.

More than 75 countries have done away with the capital punishment. It has been observed and statistical data prove that the crime rate is persistently on rise in countries which have continued with the capital punishment. And the countries which have annulled the death sentence, the rate of crime has considerably decreased. It is a high time for
India to follow the suit. The indispensable notion of justice is to reform the society and by prescribing death sentence we are only creating more criminals.