Those who have followed my blog since the beginning, would remember well that my very first blog post was titled "Don't kill this man". Practically nothing disgusts me more than injustices committed by the State, and within that I hate the institution of death penalty the most. If you haven't read my first post, I would highly recommend it. [1]
Of the countries that still retain and practice the death penalty, perhaps only USA, Japan, India and Indonesia are secular democracies. In most other countries, death penalty is applicable for purely harmless acts as well. For example, in North Korea you if you make an international phone call, you risk being shot dead before a stadium full of 150,000 people [2]. Don't ever visit Saudi Arabia if you practice astrology, because they will sentence you to beheading even if you were practicing "sorcery" in your home country, where it is perfectly legal [3]. Are you gay? Sorry, you must be thrown off the cliff if you are in Saudi Arabia [4], or be hanged publicly if you are in Iran [5]. Don't ever dare to commit heresy, blasphemy or apostasy against Islam in an Islamic country. The punishment most severe and torturous is reserved for adultery and prostitution. Death by stoning is sanctioned for such 'crimes', and the stones are carefully chosen - they should not be so big so as to cause instantaneous death, and should not be so small that they don't lead to death at all.
When it comes to India, most people seem to be self congratulatory that India is not so "uncivilized". Making international calls, practicing astrology, being gay or lesbian, heresy and apostasy are all perfectly legal here. Blasphemy that does not "hurt a community's feelings" or "encourage hate" is also legal. Adultery and prostitution are hardly considered criminal acts anymore, and sex workers are politically well organized in the states of Delhi, West Bengal, Tamil Nadu, Maharashtra, Andhra Pradesh and Karnataka [6][7].
So then what is the problem?
The problem is that even though India prefers to call itself the largest democracy of the world, it is common knowledge how unfair the "system" is. India says that its criminal justice system is free and fair, but in reality it is neither. Today's headlines was dominated by the news that the Home Ministry has requested the President to reject the mercy petition of Mohammad Afzal Guru, condemned for allegedly playing a role in the 2001 terrorist attack on Parliament.
Afzal Guru's trial is in itself a mockery of the principles of criminal justice and the Indian Constitution. On December 12, 2001 PM Atal Bihari Vajpayee warned of an imminent terror strike. The next day, it happened! 5 men entered into the Parliament complex, exploding bombs and shooting at random. While surprisingly no politician was hurt even a bit, several security men died. The nation was shocked. There were cries for revenge. Army was mobilized over the next few months, and risks of a nuclear subcontinental war remained high.
The cases was "cracked" within a few days with the arrest of S A R Geelani, a professor of Arabic at the Delhi University, former surrendered Kashmiri militant Afzal Guru, his cousin Shaukat Hussain Guru, and Shaukat’s wife Afsan Guru. India's notoriously slow judiciary convicted all the four within 1 year from the attack, giving 5 years to Afsan Guru and death to the other three. Upon appeal, Afsan and Geelani were acquitted, Shaukat's death sentence was modified to 10 years in prison, while Afzal's death sentence was upheld.
Time and again, various human rights groups from India, Kashmir and elsewhere have expressed serious reservations about the fairness of the trial in this particular case. For starters, Afzal Guru did not have a lawyer at the court of first instance, i.e. the sessions court. He was appointed a lawyer by the court (who was not from the list of four that Afzal had asked the judge for).
The biggest travesty of justice in this case is that the lawyer arranged by the court was highly biased. He did not visit Guru even once during the trial! He did not challenge anything during the procedure of recording of evidence, and thus damaged Guru's chances of seeking an acquittal even on appeal (as the appeal courts use the same evidence to arrive at a decision).
While much of the evidence put forward by the Delhi Police was rejected by the Delhi High Court and the Supreme Court, with severe strictures against them for faking evidence, no action was directed against them by either. Delhi Police too did not conduct any internal inquiry on the charges proven against them in the courts. The very fact that Geelani's and Afsan's convictions were thrown out on appeal indicates that - a) Delhi Police conducted a shady investigation and faked evidence, b) the proceedings at the trial court were highly flawed.
In any civilized democracy, a retrial would have immediately been ordered once it became clear in the court that the police had faked arrest memos, telephone conversations, and had illegally detained people. The Supreme Court had even rejected Afzal Guru's confession as being "unreliable".
Yet instead of removing doubts over the fairness of the trial, the Supreme Court operated on a lynch mob mentality, provoked by the slander campaign run against him in the media, which served as a media trial. The apex court wrote that the collective conscience of the society requires for Afzal Guru's life to be extinguished. To them it did not matter that Guru's conviction was based on purely circumstantial evidence. What mattered more, was the public image built around Afzal Guru, that he was a dangerous terrorist, who should be killed without any delay. The Supreme Court also did not order any investigation into the allegations made by Afzal Guru, on the role played by the STF (apparently the STF had asked Guru to escort Mohammad, one of the gunmen who was killed, to Delhi and arrange for his stay there).
With such serious concerns having been raised at the quality of his defense and the fairness of the trial proceedings, rather than hanging Afzal Guru, India should arrange for an open and fair retrial. Nothing prevents the judiciary from arriving at the same conclusion, but to take away an innocent person's life on mere hearsay and lynch mentality, would be the most damaging. It would not only leave a permanent scar on Guru' family and friends, but also on the Indian Constitution itself.
PS: For more information, please refer to [8], [9] and [10]. I too at one point in time used to think that unnecessary noises are being raised against his conviction, which do not deem any consideration, but upon researching a little independently I am increasingly convinced that Afzal Guru's trial violated all domestic and international norms.
Of the countries that still retain and practice the death penalty, perhaps only USA, Japan, India and Indonesia are secular democracies. In most other countries, death penalty is applicable for purely harmless acts as well. For example, in North Korea you if you make an international phone call, you risk being shot dead before a stadium full of 150,000 people [2]. Don't ever visit Saudi Arabia if you practice astrology, because they will sentence you to beheading even if you were practicing "sorcery" in your home country, where it is perfectly legal [3]. Are you gay? Sorry, you must be thrown off the cliff if you are in Saudi Arabia [4], or be hanged publicly if you are in Iran [5]. Don't ever dare to commit heresy, blasphemy or apostasy against Islam in an Islamic country. The punishment most severe and torturous is reserved for adultery and prostitution. Death by stoning is sanctioned for such 'crimes', and the stones are carefully chosen - they should not be so big so as to cause instantaneous death, and should not be so small that they don't lead to death at all.
When it comes to India, most people seem to be self congratulatory that India is not so "uncivilized". Making international calls, practicing astrology, being gay or lesbian, heresy and apostasy are all perfectly legal here. Blasphemy that does not "hurt a community's feelings" or "encourage hate" is also legal. Adultery and prostitution are hardly considered criminal acts anymore, and sex workers are politically well organized in the states of Delhi, West Bengal, Tamil Nadu, Maharashtra, Andhra Pradesh and Karnataka [6][7].
So then what is the problem?
The problem is that even though India prefers to call itself the largest democracy of the world, it is common knowledge how unfair the "system" is. India says that its criminal justice system is free and fair, but in reality it is neither. Today's headlines was dominated by the news that the Home Ministry has requested the President to reject the mercy petition of Mohammad Afzal Guru, condemned for allegedly playing a role in the 2001 terrorist attack on Parliament.
Afzal Guru's trial is in itself a mockery of the principles of criminal justice and the Indian Constitution. On December 12, 2001 PM Atal Bihari Vajpayee warned of an imminent terror strike. The next day, it happened! 5 men entered into the Parliament complex, exploding bombs and shooting at random. While surprisingly no politician was hurt even a bit, several security men died. The nation was shocked. There were cries for revenge. Army was mobilized over the next few months, and risks of a nuclear subcontinental war remained high.
The cases was "cracked" within a few days with the arrest of S A R Geelani, a professor of Arabic at the Delhi University, former surrendered Kashmiri militant Afzal Guru, his cousin Shaukat Hussain Guru, and Shaukat’s wife Afsan Guru. India's notoriously slow judiciary convicted all the four within 1 year from the attack, giving 5 years to Afsan Guru and death to the other three. Upon appeal, Afsan and Geelani were acquitted, Shaukat's death sentence was modified to 10 years in prison, while Afzal's death sentence was upheld.
Time and again, various human rights groups from India, Kashmir and elsewhere have expressed serious reservations about the fairness of the trial in this particular case. For starters, Afzal Guru did not have a lawyer at the court of first instance, i.e. the sessions court. He was appointed a lawyer by the court (who was not from the list of four that Afzal had asked the judge for).
The biggest travesty of justice in this case is that the lawyer arranged by the court was highly biased. He did not visit Guru even once during the trial! He did not challenge anything during the procedure of recording of evidence, and thus damaged Guru's chances of seeking an acquittal even on appeal (as the appeal courts use the same evidence to arrive at a decision).
While much of the evidence put forward by the Delhi Police was rejected by the Delhi High Court and the Supreme Court, with severe strictures against them for faking evidence, no action was directed against them by either. Delhi Police too did not conduct any internal inquiry on the charges proven against them in the courts. The very fact that Geelani's and Afsan's convictions were thrown out on appeal indicates that - a) Delhi Police conducted a shady investigation and faked evidence, b) the proceedings at the trial court were highly flawed.
In any civilized democracy, a retrial would have immediately been ordered once it became clear in the court that the police had faked arrest memos, telephone conversations, and had illegally detained people. The Supreme Court had even rejected Afzal Guru's confession as being "unreliable".
Yet instead of removing doubts over the fairness of the trial, the Supreme Court operated on a lynch mob mentality, provoked by the slander campaign run against him in the media, which served as a media trial. The apex court wrote that the collective conscience of the society requires for Afzal Guru's life to be extinguished. To them it did not matter that Guru's conviction was based on purely circumstantial evidence. What mattered more, was the public image built around Afzal Guru, that he was a dangerous terrorist, who should be killed without any delay. The Supreme Court also did not order any investigation into the allegations made by Afzal Guru, on the role played by the STF (apparently the STF had asked Guru to escort Mohammad, one of the gunmen who was killed, to Delhi and arrange for his stay there).
With such serious concerns having been raised at the quality of his defense and the fairness of the trial proceedings, rather than hanging Afzal Guru, India should arrange for an open and fair retrial. Nothing prevents the judiciary from arriving at the same conclusion, but to take away an innocent person's life on mere hearsay and lynch mentality, would be the most damaging. It would not only leave a permanent scar on Guru' family and friends, but also on the Indian Constitution itself.
PS: For more information, please refer to [8], [9] and [10]. I too at one point in time used to think that unnecessary noises are being raised against his conviction, which do not deem any consideration, but upon researching a little independently I am increasingly convinced that Afzal Guru's trial violated all domestic and international norms.
You said you researched "a little independently" - Isn't your independence limited to only google search or so called 'Media' - My point is when Media had made the environment that Afzal Guru should be hanged but its only to avoid negative reaction in Kashmir, that govt is not going ahead - you and me and most of us had the same view ! Now when some part of media is putting this 'unfair trial' thing ahead - some of us will start believing them. But its the media in both cases - so which one we should believe and which one not !!! I mean as long as we haven't gone through all these evidences and facts by ourselves, I won't call it independent research !
ReplyDeleteNext, yes in a liberal democracy, all these issues should be taken up and discussed as you are doing. But you know the cases like of Afzal Guru are high-profile cases and also politically motivated. In any advanced democracy the liberal values may not be followed in such high-profile and political cases. But if we talk about the liberal values for general masses, I think Indian democracy has performed much better than most of the countries in this world. And yes at the same time I accept that there may still be many lacunas in liberal values which may directly affect the 'general masses'.
The one value which you have mention here i.e. free and fair trial, I think Indian Judiciary has held it very good for the general masses. If you can site me some more examples like that of Afzal Guru case, then I'll take your point valid that this value is still not completely adopted in our system and infact all such cases, if any, will really thank you to put their voices to masses. Otherwise there is no point of discussing about Afzal Guru case, likewise who knows if media comes tomorrow saying that Kasab wasn't given full defense chance in Indian trials - we can have the similar story there as well !
In brief there is no point in condemning the whole Indian System on basis of one or two high profile cases !!!
One last comment - I read somewhere on your blog abt Dhanajay Chatterjee's execution ... But couldn't get your idea clear. You said it was only to test if govt can go ahead with the execution of more dreaded terrorist - that means execution was not justified - is that what u want to say ???
Dear kurkure,
ReplyDeleteFirst of all I hope that you understand the difference between traditional TV media and internet media. TV media is highly biased and driven by TRPs. On the internet however, you can look around and seek the information that you are interested in - without any restrictions. In Afzal Guru's case I have expanded my horizons by digging a little deeper to understand the other viewpoint (which was never taken up by our so-called free and fair TV and print media). This is what is called independent research (rather than accepting the soup prepared by the TV channels, I prepare my own soup!) and after reading this other viewpoint, I am increasingly convinced that there are hundreds of lacunae in Afzal Guru's trial, which in any advanced democracy, would have raised a national outcry.
And please don't trivialize this important issue by expressing your blind faith in the Indian judiciary. It sucks that nobody is willing to ask these questions and is comfortable with the cocoons that they have built around themselves.
Of course I understand that we do cherish the concept that "Justice is Blind".
ReplyDeletePersonally, I find it inconceivable that Afzal Guru's lawyer would have represented him in a court of law without ever having spoken to him.
Also, if what you say about the sloppy and unprofessional methods used by the police to 'investigate' this case and enforce the law is anywhere near the truth, then India can crow about high judiciary ideals until the strawberries grow in Antarctica, it will forever be a 'failed' democracy.
When you say that
"Time and again, various human rights groups from India, Kashmir and elsewhere have expressed serious reservations about the fairness of the trial in this particular case.",
you express the only hope present in your entire blog.
This mockery of the judicial system is nothing short of appalling.
Among other things, Maimonides (1135-1204), a Spanish Jew who wrote in Arabic wrote in his famous "Guide to Wanderers" that the pursuit of truth is religion itself.
Hi JP,
ReplyDeleteThank you for your very valuable comments. I understand your emotions, and agree with your views, but for the classification of India as a failed democracy. The Democracy Index (prepared by The Economist) calls India a "flawed democracy", with which I concur. To call India a failed democracy might be a little overboard, as India's democracy is regarded as being better than almost all countries in South and Latin America (including Brazil and Mexico), Turkey (soon to be in the EU), Israel, etc by the same list. So we have a pretty long way to go towards becoming a fully functional democracy where everybody is treated with complete dignity and equality, but I would never say that the glass is completely empty.
http://en.wikipedia.org/wiki/Democracy_Index
Dangar I hope you're not disappointed by the fact that 'no politician was hurt even a bit' :P
ReplyDeleteOn the question of Democracy I agree with you that it's highly flawed/corrupt but not totally dysfunct. I'm not sure if the same can be said of some other institutions, e.g. police or judicial systems, or perhaps army and offshoot security forces as well, especially when they operate in direct contact with ordinary poor citizens.
In Afjal's case, for example, if 10% of what this( http://www.countercurrents.org/tabassum240610.htm) letter says is true, would be enough to piss many off and make them do stupid things.
It is important that ordinary people recognize that these systems have been put in place to serve people and not to exploit them, as usually happens, and hold them accountable. Media should serve its purpose of informing citizens with some integrity, something majority of them seem to have sold for profit. On the positive side, advancement of technology, invent of things like say internet give us citizens immense powers(to a minority but nevertheless,) to inform ourselves and others and organize and act if needed and hopefully it happens on greater scales, in a more pervasive manner in future. That will also be a step towards real democracy, which at the moment is more in theory than practice.
In the case of Afjal Guru, I totally share your and JP's concern. Police faking evidences should be a serious issue and doing nothing about it negates the credibility of police as well as the courts! Even if he is guilty, I don't agree with the death penalty. To hell with the 'collective conscience' of lynching mobs. Jesus said something about it and it holds true now as ever.