Monday, 18 February 2013

Was Afzal Guru actually guilty?

After Afzal Guru’s execution, many have questioned the way in which he was hanged and buried, without informing his family in time or handing over his dead body to his family. Advocate Colin Gonsalves who represented Guru in the High Court argues here on his blog that the trial court had denied him a lawyer. Also, the police broadcast his (forced) confession on prime television resulting in the popular perception that Guru was guilty. This trial by media made it impossible for Guru to receive a fair trial subsequently, according to Gonsalves.

The failure to provide legal representation is a serious lapse for which there are no excuses. Also, the torture claims are a black mark on the Indian security forces. Eminent jurist Fali S Nariman has said that Afzal Guru’s execution without properly communicating it to his family is a big mistake and an embarassment.

However, there is an accusation which is far more serious, namely that Guru might not be guilty at all, that the prosecution did not prove his guilt beyond reasonable doubt. Obviously, this is a far more serious allegation, one which goes to the root of India’s criminal justice system. The police/prosecution’s case against Afzal goes like this. After the attack on the Parliament, some of the dead terrorists had slips of papers in their pockets which had Afzal Guru’s mobile number on them. That led the cops to Guru and his laptop which had even more details. Transcripts of phone calls made to Afzal Guru by Mohammad (one of the five terrorists) established that Mohammad had told Afzal Guru that Mohammad and his accomplices were going to carry out the attack as per plan. The information stored on Guru’s laptop made it clear that Guru was deeply involved in providing hideouts and accommodation to the terrorists after they reached Delhi, and in purchasing the chemicals used to prepare the explosives that were used. Guru also had Rs. 10 lakhs on him. The fact that Guru was a former militant who had once crossed the LoC to receive arms training in PoK did not help matters.

Guru’s response to the prosecution’s charge, set out in an interview given to my namesake, Journalist Vinod K. Jose, is that he was framed. Since Guru was a surrendered militant, he was known to the police and was monitored by them. Guru claims that one DSP Davinder Singh asked him to do a small job. Guru had to take one man to Delhi and find a rented house for him in Delhi. Apparently, this man did not speak Kashmiri and called himself Mohammad, the name of one of the five gunmen who attacked Parliament and who was killed in the attack along with the other four. Guru claims that he was arrested in at Srinagar when he was about to catch a bus for Sopore. From Srinagar, he was taken to Parimpora police station, tortured, taken to the STF headquarters and from there taken to Delhi.

On the whole I believe the government version. I can believe it if Indian policemen are alleged to have killed someone in a fake encounter and then claimed that the dead man was responsible for a particular atrocity. However, I do not think the police would be able to fabricate evidence to such an extent that it stands scrutiny in a series of courts, including the Supreme Court.

This article claims that that the case against Guru certainly did not merit a death sentence. Which is rubbish. Guru is either guilty or not guilty. If the case against him is not proved beyond reasonable doubt, he cannot be punished at all. No, he cannot even be sentenced for a single day. On the other hand, once his guilt in respect of the charges against him is proven, then the actual sentencing is a different matter altogether. It is downright silly to argue that Guru’s guilt is not sufficiently proven and so he should be sentenced to life imprisonment rather than award him the death penalty. There is a clear distinction between conviction and sentencing. The former consists of deciding if the accused is guilty of the charges placed against him. If s/he is, the court proceeds to the next step of sentencing. When the Supreme Court stated that “the collective conscience of the society will be satisfied only if the death penalty is awarded to Afzal Guru”, the court had completed the first step and was assessing the punishment appropriate for Guru. One cannot interpret the Supreme Court’s statement to mean that it wanted to kill Guru irrespective of his guilt, just to satisfy the rest of India.

It is a different matter altogether to argue for clemency or to say that death sentences have no place in the 21st century – one can understand that argument, though in this case, I feel the death penalty was warranted.

As expected, Guru’s execution has caused an uproar, especially in the Kashmir Valley. Interestingly, former head of R&AW Mr. B. Raman argues here that since “Afzal Guru was an accomplice and facilitator, who did not actively participate in the attack on the ground”, he could have been shown clemency, though B. Raman also says that “nobody can question the appropriateness of the death penalty awarded to him.

At the end of the day, I am with Gopal Subramanium, a former Solicitor-General of India, who argues that there was compelling evidence against Guru and that the death sentence in his case was fair. He goes on to add that however, “what one cannot appreciate is the manner — the disregard for various human requirements which are necessary, like meeting with the family, informing the family, after all there is the element of grieving which is involved in execution. I think the state should have been extremely forthcoming — it should have prepared, and it could have done that secretly. It could have done that with care and caution.

3 comments:

Sandhya said...

Liked it, Vinod :) The distinction between conviction and sentencing, the larger issue of retaining death penalty as a sentence and the manner in which the the sentence was actually carried out in this case - everything was muddled in media debates. Nice to see clarity here.

Sandhya said...

Liked it, Vinod :) The distinction between conviction and sentencing, the larger issue of retaining death penalty as a sentence and the manner in which the the sentence was actually carried out in this case - everything was muddled in media debates. Nice to see clarity here.

Sandhya said...

Liked it, Vinod :) The distinction between conviction and sentencing, the larger issue of retaining death penalty as a sentence and the manner in which the the sentence was actually carried out in this case - everything was muddled in media debates. Nice to see clarity here.