For a long time, I have been reading articles from various sources (and not just Arundhati Roy’s) about how Afzal Guru’s death sentence given by Supreme Court of India was a gross miscarriage of justice. This newspaper article is an example:
Defending Afzal Guru, Arundhati Roy said that the Supreme Court’s ruling which says that Afzal Guru must be hanged “to satisfy the collective will of the nation” although there is no proof of his involvement is in itself unconstitutional.
Being a person who has always been against capital punishment, I fell an easy prey to the argument made by these people. Obviously, when you read that statement, you would agree that it does smell like something really wrong has happened.
Nothing could be further from the truth.
The supreme court judgement is here.
And here is the relevant context, which gives the correct context to the text Arundhati is quoting. But with the proper context you will see that she has been very “convenient” while choosing the excerpt. The Supreme Court, as always, had done an awesome job, to my untrained eyes.
The conspiracy to commit the offence of murder in the course of execution of conspiracy is well within the scope of conspiracy to which the accused Afzal was a party. Therefore, he is liable to be punished under Section 120B read with Section 302 IPC. The punishment applicable is the one prescribed under Section 109 IPC in view of the phraseology of Section 120B “be punished in the same manner as if he had abetted such offence”. Section 109 IPC lays down that “if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, a person abetting the offence shall be punished with the punishment provided for the offence.” Thus the conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment prescribed under Section 302 IPC. Either death sentence or imprisonment for life is the punishment prescribed under Section 302 IPC.
In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial Court and the High Court. The present case, which has no parallel in the history of Indian Republic, presents us in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples’ representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity. It is a classic example of rarest of rare cases.
The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the Government as well as disrupting normal life of the people of India is some thing which cannot be described in words. The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this treacherous act. The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence.
After a reading of the judgement, some points are very clear to me:
There were several very strong circumstancial evidence of a close link between the dead terrorists and Afzal. Here is one of them from the judgement:
The picture that emerges is this: The fact that an instrument used by Afzal (with the phone number 9811489429) till 12.12.2001 was recovered from one of the deceased terrorists on the date of incident, reveals that Afzal would have necessarily met the deceased terrorist between the afternoon of 12th December and the morning of 13th December.
The police did a horrific job of investigation. Being under terrible work pressure is no excuse for causing a person’s miscarriage of justice where the punishment is death. It is evident that police had some facts, but didn’t spend enough effort connecting all of them. To make shortcuts, they violated procedures as pointed out by the court. They probably also coerced or forged confessions. Most of the problems people have with this judgement was the shoddy investigative work that the courts had to rely upon.
Afzal Guru had quite some problem getting good representation. However, I do see Ram Jethmalani having given a good defense to the defendants. A country which claims to be a fair democratic country should always see that the most rotten of defendants get the right support to defend themselves. This is because there is a tremendous amount of pressure and prejudice against the defendants already before the trial starts. To have even a sense of fair play, the defense should be such which can take on such an unfair environment. I salute Ram Jethmalani for always having done this for the country. Very few people of his kind exist in this country.
If one has an issue about why Afzal is being given the same punishment as the people who actually committed the crime, please read the judgement. The relevant part is in the excerpt above. This is the law in this country. The court just followed it.
But at the end of the day, my faith in our judiciary is restored. I don’t see a miscarriage of justice from what I have read.
Now whether capital punishment is a good thing or not, is a different issue. I made my stand clear at the beginning of this post, and I don’t want to mix issues in this post.