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When the Indian nation’s ‘conscience’ was satisfied: Gazala Peer

February 15, 2013

Guest post by GAZALA PEER

CRPF personnel stand guard at the martyrs' graveyard in Srinagar,preventing entry. The graveyard has a new empty grave, that of Afzal Guru. A similar empty grave waits for Maqbool Bhat, also buried in Tihar jail. Photo credit: Mukhtar Khan/Associated Press

CRPF personnel stand guard at the martyrs’ graveyard in Srinagar, preventing entry. The graveyard has a new empty grave, that of Afzal Guru. A similar empty grave waits for Maqbool Bhat, also buried in Tihar jail. Photo credit: Mukhtar Khan/Associated Press

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:

17 Comments leave one →
  1. shourav permalink
    February 15, 2013 5:04 PM

    I refuse to be part of this collective conscience that hangs innocents. Afzal Guru’s state-murder did not occur in my name.

  2. Connor permalink
    February 15, 2013 5:30 PM

    garv se kaho Kashmir don’t belong to Muslims alone, It belong to Hindus as well and not only Kashmiri hindu but all the 100 cr hindu as our constitution clearly says that every indian has the right to migrate to any state he wants and this is the idea of INDIA, otherwise we have to declare INDIA A HINDU RASHTRA if we concede to the demands of Kashmiri muslims.

  3. anonymous indian permalink
    February 15, 2013 6:21 PM

    “We cry and beat our chests. Anything that is normal and fair is denied to them!.”

    Wonder if you ever felt the same way for the Pandits who were systematically ethnically cleansed from the valley. I doubt it. And so you have lost all moral right to raise issue of fairness. You can talk only when you are fair to others.

    • Pritam permalink
      February 15, 2013 7:38 PM

      On your logic, most Brahmins oppressed others for centuries so they do not have a right to speak up against any exploitation. Ashoka massacred people in Odisha, so he had no right to preach peace later. Noam Chomsky is an American, and AMerica has massacred people all over the world, he being an American has no right to speak of peace and resistance. Aurangzeb was a Muslim who killed Hindus, the British massacred people in India and other colonies, and so today all Muslims and the British have no moral right to fairness. You, anonymous, might be a Hindu, Hindus massacred muslims in Gujarat, and so you have no right to raise issues of fairness either. The best part of your comment is that you ‘wondered’ about the authors feeling, and then conclude that on the basis of your wondering others have no moral right to raise issues. In your world no body should raise any issues since everyone probably belongs to a community some members of which committed atrocities on others. Take a lesson in logic, and Hindu philosophy have furthered that cause a lot. At least learn some good things that many Pandits developed. And yes, on your logic, the Indian state has killed thousands in Kashmir and other places, so it should shut down its courts as it has no right to raise moral issues, because it has been unfair on numerous ocassions.

  4. Whatever permalink
    February 15, 2013 7:16 PM

    And what makes you believe that denial of rights to Kashmiri Pandits can be addressed by denial of rights of Muslims? There is nothing fair about either case. The British, other colonizers and the Americans haven’t absolutely been ‘fair’ to the rest of the world. So what do you propose must be done? Stop using the internet?

  5. February 15, 2013 7:25 PM

    You repeated what has already been circulating around newspapers, websites and on the net. I expected you would compare and contrast Afzal Guru’s case with those who were acquitted by the Supreme Court. And that would have added value. You didn’t seemingly utilize the opportunity to desist from selectively quoting (from the SC judgment). I am inclined to believe there had indeed been a case against him. It’s understandable that you question death penalty and are right in implying it’s not a “rarest of rare” case. You quickly slipped into strong words to criticize the state and the entire nation for the execution. I am sorry to say that you are taking it out on the people of India. Did you assume the people of India are responsible in any way for this? I am questioning your journalistic standards.

    One measure of good journalism is how much of new information and facts around known events an article brings out. Do you believe you did a reasonably good job? I, for one, don’t.

  6. bilal permalink
    February 15, 2013 8:49 PM

    its a Sisyphean curse.. to struggle against the rotten conscience of the government.. oh sorry..maybe it doesn’t have one..

  7. Indian permalink
    February 15, 2013 9:07 PM

    This is what a “Fair Trial” in India means : 1 ) http://hindu.com/2002/12/21/stories/2002122102771300.htm 2) http://www.thehindujobs.com/thehindu/2002/12/10/stories/2002121004361300.htm 3)Listening to Grass-Hoppers: Field Notes on Democracy
    By Arundhati Roy.

    I feel ashamed to be a part of this country. Afzal was hanged to satisfy the blood lust of the BJP and Sangh and dare I say, the blood lust of the majority, as stated by the Supreme Court in a mellowed down tone. Shame on this country and shame on the sham judiciary!

  8. February 15, 2013 11:55 PM

    this is so certainly not my conscience.. this whole judgement has made ME a part of this state sponsored murdered.. and I feel so repulsed by this

  9. February 16, 2013 9:02 AM

    According to his own confession Afzal was handled through blackmail by STF ever since his surrender as a militant. There is good reason to believe the attack itself was as usual the murky businesses conducted by intelligence agencies that work beyond law. There are reasonable doubts even about those who got killed in the encounter and if some of those killed were the guys arrested earlier elsewhere. At least one person declared dead in the encounter died again later in another encounter in Kashmir.

    Professor SAR Geelani after being acquitted by the court was attacked by unknown gunmen outside his lawyer’s house in Delhi. He barely survived. Only the ‘security’ agencies who had framed him bore a grudge against him for having embarrassed them in the court.

    None of the Afzal’s handlers who sent him to Delhi and whose numbers were on his phone, or those who attacked SAR Geelani in Delhi were investigated or brought to justice.

    Afzal was an important source on the whole murky business snuffed and silenced for good. Thus is the collective ‘conscience’ of a nation maintained.

  10. Manoj permalink
    February 16, 2013 1:28 PM

    Dear Ghazala!! A great piece in not so great times….and I remember someone said(And I paraphrase!)–’ For someone who does not have a ‘ home’ ..writing becomes a place to live

  11. yopinks permalink
    February 16, 2013 5:19 PM

    Shame on the Government! Ashamed to be a part of this country & the worst is day-on-day this feeling increases.

  12. February 18, 2013 8:05 PM

    Shame..!
    I here condemn the barbaric crime made by a so called worlds largest democracy.

  13. Realistic Pacifist permalink
    February 19, 2013 12:52 PM

    Nice story! But why should anyone believe it just because you say so? You are implying, everyone from the DCP to judges at the Supreme courts is doing a conspiracy, and an ex militant trained in Pakistan to kill innocent people fr whatever noble cause (which in itself is not a noble profession) is telling the truth! Are kidding me? Do you even understand the gravity of the crime of attacking (or abetting in it) the parliament of a country with population of 1.2 billion. Do you realize it houses the representatives of the whole country (agreed many are corrupt crooks), and hence it is their temple/church/mosque of democracy. If Guru should have been acquitted, Kasab should have also been acquitted with the pretext that he has also been the victim of the political system of his country.
    Now don’t try to kill me, I am just giving my view! I respect your right to disagree with me as you should respect my right to disagree with yours.

  14. Sunil Shrestha permalink
    February 21, 2013 9:51 PM

    Where was all of Kashmir when Afzal needed to hire a lawyer to defend himself?

    Why did not Gazala Peer, Geelani, Mirwaiz, Hurriyat, Srinagar bar association, anybody from Kashmir arrange “proper” legal representation for “poor” Afzal?
    Why was the “innocent” Afzal left by all the bleeding heart Kashmiris to beg for a lawyer from the terrible Indian courts and judges?
    When all of Kashmir believed that a poor innocent man had been framed, could they not find one good lawyer to defend their man?
    The same courts and the same judicial system let off Geelani, Shaukat and Afshan Guru. Did they conduct the trial with a specific mandate to extract vengeance from Afzal alone?

    Has anybody really read the entire Supreme court judgement?
    http://www.scribd.com/doc/6494032/Afzals-Supreme-Court-Judgement

    Just reading through this long documents takes hours, and trying to understand the reasoning and points of law will take still more.

    Afzal Guru was neck deep in the conspiracy; he arranged hideouts, mobiles, sim cards, explosives, motorcycles, car, even a mixie to mix the explosives for the attack. He was identified by landlords and shopkeepers whom he dealt with. Detonators and left over explosives were recovered from the hideouts. Mobile records conclusively establish his continuous and constant contact with numbers found on the slain terrorists and also with Shaukat and S A R Geelani. A laptop recovered from him had files of forged identity cards and security passes used by the attackers. Computer experts and executives from the mobile companies gave statements.

    Were all the landlords, shopkeepers, vendors, computer engineers, mobile company employees, policemen, prosecutors, judges together in a great game to frame a poor Kashmiri?

    Even Shaukat and S A R Geelani were found involved. They escaped only because the evidence that could be gathered was considered insufficient by the same courts that convicted Afzal.

    Shaukat was then released a little early from prison for good behaviour.

    What else is justice about?

    Just because a convicted terrorist cooked up a sob story of his innocence, do we stop thinking and suck up his pathetic version?

    The courts meted out justice to Afzal, Shaukat, Geelani and Afsan.

    The government dithered for 12 long years and finally went about the execution in an extremely shameful way.

    The fact of the matter is Kashmir is a communal problem. The muslims have cut themselves out of the idea of India. They did not protest or prevent the atrocities on pandits. It is now “us” Muslim Kashmiris vs “them” hindu Indians. Nobody sees or brooks reason. Everything India does, is an atrocity on Kashmir.

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  1. Death Penalty – an agenda for abolition: Yug Mohit Chaudhry « Kafila

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