When the Indian nation’s ‘conscience’ was satisfied: Gazala Peer
Guest post by GAZALA PEER
People who mourn under siege are not supposed to write. We cry and beat our chests. Kashmiris have long faced such predicaments, always forced to find alternatives for everything. Anything that is normal and fair is denied to them! Like a fair trial, for instance. I am not sure if everybody knows Mohd. Afzal Guru’s story. I am not sure if I can be fair to him, but whatever I could gather from legal documents, commentaries and articles, is summarised here.
In the year 1990, Mohd Afzal Guru of Dowb-gah, Sopore, in Northern Kashmir gave up on his dream of becoming a doctor. He crossed the Line of Control and returned to Kashmir. After joining the ranks of the underground Jammu and Kashmir Liberation Front, he decided to continue his studies. Those were the days when anyone trained across the Line Of Control earned lot of respect within Kashmir and was chased by Indian soldiers. After some time, Afzal finally decided to leave Kashmir, pursuing his graduation from Delhi University.
After completing his graduation Afzal returned to Kashmir in 1996. By this time, the Jammu and Kashmir Liberation Front had formally declared a unilateral ceasefire, while many of its members where ruthlessly killed even after the announcement of a unilateral ceasefire. In the backdrop of the ceasefire announcement, Afzal managed to say good-bye to his rebellious past. He now expected the promised amnesty from the Indian State, expecting to live a restricted but relatively normal life.
As is the case with many former guerrillas who have been trying to explore non-violent means of resistance and have been haunted by Indian security and intelligence organisations, Afzal too became its unlucky victim. Despite threats from the police, Afzal tried his level best to stay away from trouble by continuously paying bribes to security agencies. He even started giving tuitions to support his meagre family income and to pay for the continuous demand for bribes. In 1997 he started a small business selling medicines and supplying surgical instruments to nursing homes and hospitals in Kashmir. In between he continued to receive threats and was asked to pay a sum of rupees five thousand and threatened that in case he fails to pay the bribe, the agencies will implicate him for supplying adulterated medicines. It was in the year 1998 that in pursuit of having a normal family life Afzal married an eighteen year old Tabasum.
Even after his marriage to Tabasum he was continuously harassed and was often summoned to the Army camps. Every visit to the camp would mean beating, torture, humiliation and intimidation. He was made to clean toilets and scrub the floor at the camps. In 2000, Major Raj Mohan of 20 battalion Rashtriya Rifles at Ganjoo House, Sopore, wanted Afzal to become an informer which he refused; he was tortured and given electric shocks on his private parts. After this incident Afzal decided to leave for Delhi to lead a normal life. The army went to his house and threatened him that they will occupy his house if he shifted to Delhi.
In 2001, Afzal was picked up from his shop by the Army and J&K State Task Force. For six days the family had no information about him. After six days he had been shifted to a detention centre at Humhama in Budgam. The Deputy Superintendent of Police, Davinder Singh, soon demanded an amount of rupees one lakh from Afzal for his release. While expressing his inability to pay the amount demanded by the police officer he was once again severely tortured. In the meantime the Indian security agencies had informed his family that if they want to see him free they must arrange for the money. After twenty days of struggle Afzal’s wife sold her jewellery and scooter, and managed to raise one lakh rupees. These twenty days were the dreadful days of torture and humiliation for Afzal at the Humhama detention centre. At Humhama he met one person named Tariq from Tral who too was being tortured. Tariq tried to convince Afzal that it is futile to resist the Indian Army and the Special Task Force and that obeying and doing things for them will make life easy.
In the backdrop of such tribulations, Afzal was released. He required medical help. He rented a room at Srinagar. Afzal and his wife planned to shift to Delhi. They decided to shift immediately after Eid which would fall on 17th of December 2001. Afzal had received a message that he has to do a small job for Deputy Superintendent of Police Davinder Singh. The job was to shift one Mohammed from Kashmir to Delhi and help him rent a room in Delhi. This Mohammed was one of the ‘terrorists’ killed in the Parliament attack in Indian capital, New Delhi.
Two days before Eid, Afzal and his brother Hilal were arrested in Kashmir. They were taken to the State Task Force camp where Afzal again met Tariq. After that Afzal was shifted to Special Cell at Lodi Road where he was tortured once again. Policemen urinated in his mouth and all over his body. He remained silent and never mentioned that it was Deputy Superintendent of Police, Davinder Singh, who directed him to take Mohammed to Delhi. Afzal feared for his brother’s life as he was still with STF. He was also warned by Assistant Commissioner of Police at Delhi, Rajbir Singh, that if he did not co-operate with the Special Cell his family would be in danger.
Under the immense pressure and twenty five days of humiliation, Afzal finally ‘confessed’ before the media, a confession which has no evidentiary value under law. While other accused in the Parliament attack case had lawyers to represent them, but Afzal had none. His wife was all alone, fighting against odds, without anybody’s support, without the means to pay for a lawyer.
The trial court appointed Attar Alam as amicus curiae a lawyer for Afzal, but he never appeared. Then the court appointed Seema Gulati as amicus curiae. She conceded that a prima facie case is made out against Afzal, she also admitted (did not dispute) many documents which damaged Afzal’s case. And just before a week when the trial was to begin she made an application that she does not want to represent the accused anymore. After her, it was Neeraj Bansal who was then appointed amicus curiae for Afzal. Afzal Guru expressed his reservations to that. He gave a list of four lawyers that he wanted to be appointed to represent his case in the court of law. While two of the lawyers suggested by Afzal refused to take up his case, the other two were never contacted.
Judge S.N Dhingra retained Neeraj Bansal despite Afzal’s resistance to the decision of appointing him as the amicus curiae in the case. Finally it was on the 8th July, 2002, that the trial began. During the tria, out of 80 prosecution witnesses Neeraj Bansal did not cross-examine 57 witnesses and inadequately cross-examined 10, while Afzal himself cross-examined a few. Neeraj Bansal did not appear on the day of final argument: he did not submit any written submission and did not refer to any case law. During final arguments the prosecution (state) based its case that witnesses were not cross-examined by the defence adding weight to the prosecution’s case. The prosecution also argued that Afzal has received adequate legal assistance. In the backdrop of these crucial inadequacies, Judge S.N Dhingra on December 18th, 2002 condemned Mohd Afzal Guru to death.
At the high court a renowned human rights lawyer took up Afzal’s case. Afzal was hopeful that in the high court he will be able to tell his story. It came as a shock to Afzal that his lawyer without his knowledge added a paragraph in his appeal. In the paragraph the lawyer mentioned that Afzal prayed that he be executed by using a lethal injection and not by hanging. Afzal got to know about all these developments through a newspaper report and could not do anything about it as he was in the prison. Eventually, Afzal’s charges at the high court were enhanced and the death sentence was maintained.
In the Supreme Court, Afzal had a lawyer but by then his case was already been stuffed with inaccuracies, procedural lack, fabricated evidence. The division bench of the Supreme Court consisting Justice P Venkatarama Reddi and Justice P P Naolekar heard the final argumenta. Afzal’s death sentence was upheld.
In the High Court, he was sentenced to death on three counts, but in the Supreme Court some charges were dropped. The Supreme Court held that Afzal was not a member of any terrorist organization. The prosecution did not plead that he was directly involved in the Parliament attack. The prosecution did not plead that he had taken part in the violence or any violent act. If one goes by the doctrine of rarest of the rare cases, there was no way that a court would have awarded Afzal the death sentence. Going by the idea of justice he was to be acquitted, compensated and apologised. But the Supreme Court of India said while reasoning its judgement: ‘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’. I loathe this reason and this rule of law in India!
Afzal did not file a mercy petition, why would he seek mercy for something he never did?
Afzal’s wife appealed to the President of India for mercy. She narrated Afzal’s story in the mercy petition. On 9 February 2013, the news of the rejection of the mercy petition reached Kashmir five minutes before the news of Afzal’s hanging! Afzal was like any other ordinary Kashmiri with extraordinary resilience. For thousands of Kashmiris who struggle and resist against Indian oppression he died a martyr’s death. The iron-fisted Indian state murdered Afzal. The power of the Indian State was clearly visible, what was also visible was the fragility of this power in Kashmir. The Indian state refused to hand over the dead body of Afzal to his family. Repeating what it did some twenty nine years ago against another Kashmiri, Maqbool Bhat.
I am sure that the conscience of Indian society has been satisfied. A fascist conscience can only be satisfied with the blood of innocents.
(This article is largely based on Nandita Haksar’ book Framing Geelani, Hanging Afzal and the order and judgement of the court in the case. Gazala Peer is a lawyer in Kashmir. She dictated this article over the phone to a friend in Delhi, as internet has been shut down by the government in Kashmir,with the exception of state-owned BSNL broadband.)
Previously by Gazala Peer in Kafila: