Hanged at 8 am, Dr. Syed Nazir Gilani

Hanged at 8 am

Sunday, 10 Feb 2013 at 09:54

Afzal’s execution may seem fit to satiate the feelings of revenge but justice is not about revenge

Dr. Syed Nazir Gilani

People in all the three administrations of Jammu and Kashmir, Diaspora and a respectably growing constituency of their sympathisers were linking with each other about the 29th Death Anniversary of Maqbool Bhat who was hanged in Tihar Jail Delhi on 11 February 1984, in reaction to the kidnap and murder of an Indian diplomat in Birmingham – United Kingdom, that we heard Home Minister Sushilkumar Shinde say to reporters that Afzal Guru was hanged at 8 am on Saturday.

High Court in its judgement on a petition of Maqbool Bhat on 6 August 1981 held that in view of Maqbool Bhat’s pending mercy petition before the President, Bhat can’t be classed as one ‘under sentence of death’ and can’t be confined apart from other prisoners. The Court held that his transfer to the death cell on 27 April 1981 is ‘arbitrary and illegal”. Consequently Bhat was shifted to Ward 1. Supreme Court of India, meanwhile, stayed the execution of the death sentence, on 11 April 1983. United Nations, Amnesty International, High Court of Delhi and the Supreme Court of India were on the side of Maqbool Bhat.

Delhi lost its cool on the murder of its diplomat in Birmingham and overran all these considerations and reacted to hang Maqbool Bhat on 11 February 1984. He was buried in Tihar jail and his mortal remains continue to remain as ‘prisoner’. Maqbool Bhat as a student, as a politician, as a one who dared to cross the line of control, as a prisoner , as a friend, as a journalist and as a nationalist of his times has continued to inspire masses, in particular the youth of Kashmir.  Political parties, in particular, Plebiscite Front (PF), National Liberation Front (NLF), Jammu Kashmir Liberation Front (JKLF) and others exalt him as a symbol to the highest point in their admiration.

Home Minister Sushilkumar Shinde’s statement that Afzal Guru was hanged at 8 am on Saturday left no choice for JKLF leadership and others in Rawalpindi, Pakistan to prepone their February 11 programme and set up an instant  protest camp. One could see Amanullah Khan and Yasin Malik, with many others sitting sullen faced and braving the cold inside the tent. A moment of grief and woe for any human person and more so for those who had an association with Afzal Guru and did not subscribe to a death sentence.

JKCHR has inscribed its interest in Afzal Guru Case from August 2011, when its members from Kashmir Chapter in Srinagar visited the Guru family in Sopore. I have expressed my concerns on the quality of his legal defence, in particular when his wife made a statement that “a police officer unlawfully used his position to coerce Afzal and his family into walking on a dotted line during the hearing of the case.”

By virtue of an attack on the Parliament and the attempt to wipe out the entire political leadership of India, Afzal’s case attracted the “rarest of rare” crimes. We had a precedent in which Sonia Gandhi appealed for mercy on behalf of Murugan's wife Nalini sentenced in Rajiv Gandhi murder case and the sentence was commuted to life term. She was given the benefit of an exclusion category of "new mothers".

International standards have also developed in such a way as to exclude more and more categories of people from those against whom the death penalty might be used in countries which have not abolished it. The exclusion of "new mothers" is widely observed in practice. This exclusion could have applied to Afzal Guru as well.
Afzal as a state subject does not seem to have received appropriate attention from the State Government, from President of India under Article 72 (1) (c) which empower the President to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the law provides for a death sentence and from the Governor under Article 161.

It remains a tragedy that the National Conference could not once again save itself from another blame to have remained in one or the other manner answerable for a part in this second hanging as well. It has failed to address the concerns raised by Guru’s wife that   “a police officer unlawfully used his position to coerce Afzal and his family into walking on a dotted line during the hearing of the case.”

It is even more distressing that J&K Chief Minister in 2013 should say that he was not consulted and had no hand in the execution of Guru. If one were to believe the chief minister that Delhi did not regard it important to take him on board and that a mercy request made by PDP did not hold any merit, chief minister has a reason to stand up to Delhi for failing to address the bare fundamentals in such cases and resign.

Chief Minister has not only failed in his oath to the people of Jammu and Kashmir, he has equally let down all those Kashmiris who braved the annoyance of establishment in Islamabad and made valiant efforts to bring him and his father out of cold, to share the favour and credibility of Pakistani leadership in London, Toronto and Brussels. Chief Minister has betrayed the sentiment which stood at guard to protect him in Islamabad, when the establishment decided to ignore him and drive rest of the delegation to Mir Pur.  The flow of Kashmiri delegations that kept calling on him in his hotel in Islamabad frustrated the establishment. The exclusive reception in his honour hosted by Muslim Conference could not have been possible without the intervention of Kashmiri Diaspora.

Government of India has stated that the J&K government has been taken into confidence before Guru's hanging early on Saturday. The common sense supports the GoI claim because an execution required a preparedness to face an instant law and order situation in Kashmir. Therefore, it would have taken a considerable discussion between Delhi and Srinagar to put in place a contingency plan to keep order in various parts of the valley and to respond to a spill over.

The manner in which the execution seems to have been carried out without informing the family to have a final word with Afzal, find about his last wish and how to conduct the family affairs after his death, highlights a characteristic of a primitive cave age society. There is no grace in the manner of justice.

It would raise many eye brows in the decent circles in India and across the world that Guru’s family had been informed about his execution through “Speed Post and registered post”. It is very unfortunate and callous disregard of the urgency involved in such communications. If at all a Kashmiri prisoner facing a death penalty and being prepared to walk to the gallows had any ‘rights’ in the discipline of Indian justice, Delhi should have alerted the J&K Government to break the news to them and to provide necessary means to the poor family to make it in time to Tihar jail before the noose was tightened.

The statement of Union Home Secretary RK Singh that J&K government has been taken into confidence before Guru's execution puts chief minister’s credibility in the boil. However, Guru's lawyers Nandita Haksar and N Pancholi have stated that his family was not informed about the government decision to hang him. It does not do much good to the duty to fairness and the discipline of justice, if the Union Home Secretary feels unsure and has asked the Director General of Jammu and Kashmir Police to check with Guru’s family whether the intimation sent to them through Speed Post, registered post has been received by them or not.

It was a requirement which should have been addressed before the execution. The statement of the lawyers that the family came to know about Guru's hanging only through news channels does not endear Delhi to Sopore in particular. "The family was not informed about the decision. They came to know only through news channels. The family is in Sopore. They cannot come due to curfew," makes a painful statement. Delhi administration which guards every household in Kashmir should have paid due regard to the fact that even if the family was informed in time, travel time for them would not have been enough to make it on time to Tihar jail in Delhi.
Afzal’s execution may seem fit to satiate the feelings of revenge but justice is not about revenge. There is difference between asking a full pardon and a petition praying that death sentence be commuted to life imprisonment. On balance one could satisfactorily state that hanging Afzal would neither serve the cause of justice nor repair the loss suffered by the families during the attack on Parliament. Our condolences go out to Afzal’s wife Tabassum.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He could be reached on email dr-nazirgilani@jkchr.com