THE sheer folly of executing Afzal Guru in Tihar Jail in Delhi on Feb 9 was well described by an ambitious former intelligence chief: “It has the potential to take the valley several years back.” He said, “I was not expecting this to happen.”
The biggest loser in this entire episode was Chief Minister Omar Abdullah. As the former RAW chief said, “He has completely lost his credibility in the Valley.”
He took over 24 hours to voice his indignation. His interview to Muzamil Jaleel of the Indian Express on Feb 10 gave him away completely. “Asked when he first learnt that Afzal was going to be executed, Abdullah said he was in Delhi on Friday (Feb 8) when the union home minister spoke to him. ‘I spoke to the governor and then to the DG police. Then we started planning for the aftermath,’ he said. ‘To be honest, when they executed Ajmal Kasab, we started expecting that this will happen.’” His “only job or role was to take care of the fallout”.
Omar Abdullah was in Delhi on Jan 31 when he met the United Progressive Alliance chairperson, Sonia Gandhi, Prime Minister Manmohan Singh and Home Minister Sushil Kumar Shinde. By then, everyone knew that the execution was not far away.
If he was not informed, he ought to resign. If he was, as seems likely, he stands exposed. Indeed, he was responsible for preventing the assembly from debating a motion by the intrepid independent MLA from Langate, Abdul Rashid, demanding that Afzal Guru not be executed. The Tamil Nadu Assembly had freely passed a similar resolution on those convicted of the assassination of Rajiv Gandhi.
The prolonged curfews and the house arrests and a Srinagar without newspapers for days, reveal a lot. Wrong as the decision was, it was also executed in a disgraceful manner. Syed Ali Shah Geelani was put under house arrest in a small room in New Delhi. His son-in-law, the distinguished journalist S. Iftikhar Gilani of the DNA was shabbily treated. So was his wife. The children were locked up in a room.
Comment in the mainstream media, especially on TV, reflected as always, a complete disconnect between New Delhi and Srinagar. The refrain was to let the law take its course. The Supreme Court had found him guilty and “politics should not be mixed with the law”.
Arundhanti Roy, as distinguished a public intellectual as she is a novelist, punctured holes in the judgments of the high court and the Supreme Court in a brilliant article and established to the hilt that the man was condemned unheard because he was undefended.
Politics do impact on the legal process. In Britain, there is a sharp difference between the “party political” and the “political” which bears on the interests of the realm. If Subhas Chandra Bose had not reportedly died in an air crash but was, instead, brought to India, tried and sentenced to imprisonment, can anyone doubt that the very first act of the interim government led by Jawaharlal Nehru would have been to free him?
If the Muslim Leaguers imprisoned in 1947 during the agitation against the unionist ministry of Khizr Hayat Khan Tiwana had not been released by the governor, the Quaid-i-Azam was certain to have granted them a pardon no sooner had he became governor-general.
A comprehensive exposition of the law was made by the attorney general of England, Samuel Silkin, QC in the Sir George Bean Memorial Lecture in Manchester on Oct 29, 1978. He was explaining the law officers’ dilemma on law enforcement. “But what if their enforcement will lead inevitably to lawbreaking on a scale out of all proportions to that which is penalised or to consequences so unfair or so harmful as heavily to outweigh the harm done by the breach itself? … If I make my decision on a party political basis, I deserve all the criticisms which I am likely to receive. But if I ignore political considerations in the widest sense of that term, then I am failing in my responsibilities and courting disaster.” He was answerable to parliament and to the electorate.
In 1988, a noted judge Lord McCluskey complained that “vast numbers of people are being punished for crimes they did not commit”. Particularly common are unfair convictions in insurgency-affected situations, based on confessions obtained under duress. Four accused in the Irish Republican Army public house bombings in Guildford in 1974 spent 15 years in prison before the dishonesty of the police officers was exposed.
It was the same story in another equally famous case of The Birmingham Six. They were convicted of 21 counts of murder in 1974. They alleged that their confessions were not made voluntarily and the police officials who had interviewed them were guilty of perjury and violence. In 1991, however, their convictions were quashed as evidence surfaced of conspiracy by the police officers to pervert the course of justice.
Judges are not infallible and the Supreme Court’s use of emotive language in the Afzal Guru case revealed a lot. No prime minister has accused militants of “treason” as it did. Rulers in medieval times might have ordered humans to “become extinct”; surely judges are not supposed to.
Even as the evidence on the attack on Parliament House on Dec 13 2001 stood, Afzal Guru was, at best a bit-actor. No witness testified against him. The evidence was entirely circumstantial and lawyers assigned to him were either indifferent or hostile. The execution, intended to silence the Bharatiya Janata Party, will only whet its appetite.
The writer is an author and a lawyer.