Fair trial demand justified
Even best of judgements susceptible to human error
Editorial, Kashmir Times, 16 October 2006
That the Kashmir issue would suffer a set-back politically, if the president rejects the petition for Afzal Guru's clemency and he is finally sent to the gallows, is a fact that cannot be negated. But that alone is not the reason why he should not be hanged. Afzal Guru, one of the prime accused in the attack on parliament on December 13, 2001, needs to be pardoned and his sentence commuted to something less severe.
Firstly, in keeping with international humanitarian standards, there is a global campaign against capital punishments. Secondly, evidence against him is weak, fabricated, based only on a selective portion of his statement, which may have been coerced. Thirdly, he is neither the mastermind of the attack, nor did he execute the attack; he was a mere facilitator, whose complicity to the crime is minimal. While Kashmir's political situation is of paramount importance, and any bid to go ahead with the death penalty would prove counter productive, deepening the alienation of the people and increasing their skepticism to peace process or words like confidence building measures, it would be na‹ve to either totally reject Guru's conviction, hailing him as some kind of a freedom struggle icon or rallying for his complete innocence. Such lop-sided protests don't help his case; in fact they provoke a negative reaction as is evident.
The human rights activists, however, may be justified in seeking a fair trial, on the plea that Guru's side of the story was never really heard, for the man. Everything needs investigation and adequate understanding before passing any kind of verdict. The problem in this case is that the investigations have made things murkier rather than bringing some clarity.
Any opposition to this demand seeks to rob the nation from knowing the truth, besides causing probable injustice to the man accused and convicted of the crime. To understand the merits of the 'save Guru' campaign, it may also be important to question the logic of the dissenting voices also.
The argument for justifying capital punishment is that this would be a likely deterrent and will prevent terrorism. There is no empirical evidence to prove that capital punishment has proved to be a deterrent. In the case of militancy, the probability is much less. Maqbool Butt's hanging became a stoking device to fan the fire of Kashmiri alienation against India at a time when there was no armed conflict. Butt's death alone may not be the reason for the conflict, but it added to the seeds of discontent. One hanging produced an entire generation of militants or militant supporters in the Valley. Evidence is available not just in Kashmir but world wide. In the aftermath of 9/11, the US tyranny in Afghanistan, Iraq or elsewhere in the world has only ended up strengthening the hands of the anti-US combatants or Islamic radicals or the Al Qaeda, if it exists. The so-called wars against terror have only ended up sparking more terror, perpetrated by both US and its allies on one side and the Islamic radicals on the other.
The theory of deterrence can be easily discarded. Another argument is that Guru already stands convicted. The Supreme Court, while upholding death penalty for him has observed, "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." While one may argue whether the collective consciousness of people can or cannot be satisfied by hanging a person in a liberal, democratic set up, where law is not based on the principle of revenge, there are several other facts that can be deliberated upon. And whether this action based on the need to 'satisfy the collective conscience' would be in keeping with the spirit of the law. The instrument of clemency is a legal provision provided by the law in view of the fact that even the best of judgements are susceptible to human error.
Take the case of Kehar Singh, accused and convicted in Indira Gandhi assassination case. It is now widely recognised that Kehar Singh's sentence was based on weak, circumstantial evidence. Today, even the judge who passed his sentence questions the accuracy of the judgement, according to a PUDR report. The report also points out another problem with application of the death penalty : due to the lack of clear guidelines, judges in India have a great deal of discretion in capital cases. As a result, whether a person is hanged for a particular crime depends largely upon the views of the individual judge. In the case of Harbans Singh v. State of Uttar Pradesh and Others [(1982) 2 S.C. Cases 101], three men convicted of playing an equal role in committing a crime each met with a different fate, depending on which Supreme Court bench heard their appeal. While the death sentences of two of them were commuted, the third was executed. Such arbitrary and unequal treatment of equally situated persons violates Article 14 of the Indian Constitution, the report aptly remarks.
There are several parallels that can be drawn between Guru's case and Kehar Singh's, since role of both has been that of a facilitator. Certainly, then two wrongs do not make a right. Afzal Guru's petition for clemency and fair trial is lying before the president and it is hoped that wisdom prevails and justice triumphs. It is also hoped that the latest Supreme Court verdict in calling for a judicial review before giving the nod for clemency, should not be made a pretext to hamper Guru's case. The verdict is based on the premise that decisions on clemency cannot be subject to whims of certain individuals. This cannot and should not be misused to deny justice.