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Capital punishment

Playing to the gallows

The chorus for hanging Afzal Guru, which started up again soon after Ajmal Kasab's execution, and which has seen political parties and many in the media seizing this opportunity to up the jingoism, should lead us to ask the big question once again: does Guru really deserve to die?

It's rather well known now that even before the judicial trial of Afzal Guru started, his trial by media began soon after his arrest. A handcuffed Guru was presented before the media in Delhi to put through his 'confession', which ended up creating a 'guilty before trial' mindset across the country. And, ironically, Guru was not provided a lawyer from the moment of his arrest - December 5, 2001, and right up to the filing of the charge sheet in May 2005. He also had no idea of the consequences of his statements in custody. This trial by media and the resultant extreme sentiments created across the country also created their own pressures on the judicial trial. In the trial court, Guru did not have access to an adequate defence;he requested competent advocates and suggested four names. The trial court judge, after enquiring from two of the advocates present in the court (who declined) did not pursue the enquiry any further. A lawyer then appointed by the court for Guru withdrew. In the absence of any defence, there was no competent cross examination against witnesses, prosecution testimony, or the lack of proper proof presented in the court.

Not only was the fear (and prejudice) in representing Guru rather evident, in the case of some other accused too, reprisals from extreme elements were seen. The case against Guru ultimately ended up in the Supreme Court (SC). The first defence lawyer withdrew midway while the second amicus appointed was rejected by Guru. Yet in spite of Guru's protests, the amicus continued, since nobody was ready to take up his case. This lawyer was known not to have paid even a single visit to his client, and for not even cross-examining properly the witnesses or proof in the case.

In its August 2005 judgment the SC admitted that, "The conviction under section 3 (5) of POTA is also set aside because there is no evidence that he is a member of a terrorist organisation, once the confessional statement is excluded. Incidentally, we may mention that even going by confessional statement, it is doubtful whether the membership of a terrorist gang or organisation is established. " But the court also concluded, "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. "

But this "collective conscience" had already been determined by the media trial and also by political opportunism. Moreover, Guru is accused only of being a cog in the wheel;he was not at the crime scene, did not fire any shots and is not even accused of being the mastermind. All evidence against him is circumstantial. His phone number found on the mobile phone of one of the dead attackers became the bedrock of the police case against him. But Guru's mobile also had the numbers of police Special Task Force personnel with whom he had been interacting (and working) with earlier. This was not considered in the trial.

The SC judgment has been built on a case put forward based on methods employed by the Delhi Police's special cell, a unit that has been repeatedly questioned and slammed for prejudiced arrests and biased handling of other terror cases. Remember the acquittals in Delhi's Lajpat Nagar bombing ? Or case of the framed Kashmiri aero engineer?

Guru's case could be seen as an effort to sacrifice him in order to satisfy a national urge for such trial results. Having no one to punish could have been viewed across India as an insult to those who sacrificed their lives defending Parliament.

Could we conclude that there seem to be two systems of justice in place in the country: one for the majority and the other for the minority? And if you just happen to be a Kashmiri Muslim, then 'guilty till not proven innocent' will be the norm. It is a travesty that a country where Dara Singh (killer of Graham Staines ) had his death sentence commuted to life imprisonment, and where Maya Kodnani (an accused in the 2002 Naroda Patiya massacre) was similarly spared, uses circumstantial evidence to send Guru to the gallows.

Guru's hanging should be opposed not because it will add fuel to the fire in J&K but because he was bereft of fair representation in his trail. Because the same systems of justice and investigation were not made available to him (just as they aren't to many other Kashmiris) as they are to other Indians. Guru is a victim of state apathy - a surrendered militant who shunned violence only to be used by the brutal state system as a sacrificial goat.
Many Kashmiris, who've long been at the receiving end, have lost hope of getting a fair deal from judicial systems. Such prejudice has only helped deepen the divide between people in the Kashmir Valley and the rest of the country.
With the clamour for his life peaking, Guru may have little chance of escaping the noose. But his silent death will surely silence, permanently maybe, any faint hopes for justice many Kashmiris may have had from the courts.

The writer is a Srinagar-based freelancer.

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