Author: Saadut
•10:29 AM



Today early morning Afzal Guru was hanged by India to satisfy a ‘collective conscience’ of a nation, ‘conscience’ of the same state that stands accused of colossal war crimes in #Kashmir without any recourse to justice ever. Today again Indian political parties shall be seizing this opportunity in measuring ‘my nationalism’ v/s ‘your nationalism’ and Indian electorate will be drilled to ‘nationalist rhetoric’ on this blood. Not missing the point that this ‘collective conscience’ was used appropriately by Congress just in time for electoral gains and to fox the BJP in winning some more ‘nationalist medals’ over the opposition. But did Afzal really deserve to die? Did Afzal Guru’s case fall in the ‘rarest of rare’ category and did his crime really equal his sentence?

Even before the judicial trial of Afzal Guru had started, the trail by media had been forced upon him, right after his arrest. A handcuffed Afzal in the office of Delhi police special cell was presented before national media to put through his ‘confession’ of crime. This created a mindset across the country which had now decided that he was the main culprit and started baying for his blood; a fair trial was now seemingly impossible. Ironically Afzal did not have any lawyer from the moment of his arrest (from the date of his arrest on 15th Dec 2001 to the filing of the charge sheet on 14th May 2005) and had no idea of the consequences of his statements (statements in lockups and under extreme torture are often not voluntary but under duress and fear). This trial by media not only created pressures on the judicial trial by whipping extreme sentiments against the accused across the county but also affected the psychological state of Afzal himself.  In the trial court also Afzal did not have access to a lawyer; he requested for competent advocates and suggested four names. The trial court judge after enquiring from two of the advocates present in the court (who declined) did not pursue the enquiry any further. A lawyer then appointed by the court to Afzal withdrew soon; the trial of Afzal proceeded without a defence lawyer. In the absence of any defence for Afzal, there was no competent cross examination against witness, prosecution testimony, seizure memos or proof presented in the court. In such a scenario how could the trail ever be balanced and fair?

Not only was the fear (and prejudice) in representing Afzal evident, in the case of other accused also reprisals from extreme elements were visible. Right winged hooligans attacked the office of Ram Jethmalani when he had offered to represent the other accused SAR Geelani (who did get defence later and was acquitted). The case against Afzal moved across levels and ultimately to Supreme Court. The first defense lawyer withdrew midway citing ‘engagement by another accused’. The second amicus appointed was protested against by Afzal, who submitted a list of four senior advocates to defend him. In spite of Afzals protests, the amicus continued, since nobody was ready to take his defense case. The amicus appointed for Afzal was known not to have paid even a single visit to his client, not even cross-examining properly the witnesses or proof in the case; defence relegated to a cold formality.

In its August 2005 judgment the Honorable Court admitted that “The conviction under section 3 (5) of POTA is also set aside because there is no evidence that he is a member of a terrorist organisation, once the confessional statement is excluded. Incidentally, we may mention that even going by confessional statement, it is doubtful whether the membership of a terrorist gang or organisation is established.” But the court also concluded “The 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.”

Death sentence to satisfy the ‘collective conscience of the society”? That ‘collective conscience’ of the same society had already been determined and molded by the initial media trial conducted on Afzal and the following political opportunism, where a hysteria had been whipped to a crescendo and Afzal had been pronounced guilty even before the judicial trial had begun. Lest we forget that Afzal was not even present in New Delhi when this attack on the parliament happened and he surely was not among the gunmen. Afzal is accused only of being a cog in the wheel; he was not at the crime scene, did not fire any shots and is not even accused to be the mastermind.  All evidence against Afzal was circumstantial which surely did not make it as a ‘rarest of rare cases’. His phone number in the mobile phones found on one of the dead militants became the police passage to him. But Afzals mobile also has telephone numbers of STF personnel with whom he had been interacting (and working) earlier (fact which he pointed in a letter written to his Supreme Court defence lawyer), an angle not taken into investigation.

The Supreme Court judgment on Afzal Guru has been built on the presentment of case and methods employed by Special cell of Delhi police, a force that has been repeatedly questioned for their prejudiced arrests and biased handling in other terror cases. The track record of Delhi police special cell in handling (read fabricating) and presenting (read manipulating) accused in terror cases is only well known. The recent acquittal of two Kashmiris who were on death row, by Delhi High court (after spending 16 years behind bars), had been presented by the same special cell of Delhi police as main accused in Lajpat Nagar blast case and awarded death penalty by the lower court, is one such example. Numerous other examples of special cell ‘efficiency’ include the case of Kashmiri Aeronautical engineer Imran Kirmani fabricated by the same cell in a ‘9/11 type plot’ to be acquitted 4 years later, and the 2005 fake encounter case by the same special, cell where all 7 accused ‘terrorists’ were acquitted years later.

The trial on the basis of circumstantial evidence and in the absence of enough opportunity given to Afzal to defend his case should be seen as an effort to sacrifice Afzal in order to satisfy a national urge for case results. Having none to punish would have been seen across the country as an insult to those who have laid their lives for defending the Indian Parliament, and also a political weakness of the govt.

Political parties were also actively leading the ‘hang him’ cry to better their own vote banks. While BJP was keen to project itself as being more nationalist than others, it was also eyeing this opportunity to wash off the stains of its Kandahar bargain. The Congress not wanting to be seen any less nationalist than BJP; hence Afzals bloodletting was used by them on the altar of electoral politics as sacrificial blood that would fetch them power again. The Congress also feeling jittery with the resurgence of Modi on the national platform, seen as dwarfing Congress chances in the next election, used the Afzal card just in time to counter BJP. After this hanging it will be surely difficult for BJP to counter Congress as a ‘weak govt’ and this bloody stroke by Congress has surely put BJP in a tight spot; human lives are damned.

In India there seem to be two systems in place; one for the majority and the other for the minority. And if you happen to be a Kashmiri Muslim, then no systems shall work for you and guilty till not proven innocent will be the norm. A country where Dara Singh (accused of burning alive Graham Staines and his two children in Orissa) had his death sentence commuted to life imprisonment, where Maya Kodnani (accused in 2002 Naroda Patiya, Gujarat) massacre was spared the death sentence, a circumstantial evidence decides gallows for a Kashmiri Muslim, Afzal.

Afzals hanging should not only have been opposed because it was likely to add fuel to the conflict in Kashmir, more young men visualizing confrontation as the only way out, having understood the futility of Indian justice systems for them.  Afzals hanging should have been opposed because he was befit of fair representation in the trail and because the same systems of justice and investigation were not (and are not) available to Afzal (like many Kashmiris) as are to other Indians. Afzals became a victim of state apathy and Indian indifference to Kashmir; a surrendered militant who had shunned violence and was used by the brutal state systems as a sacrificial goat.

Kashmiris for long having been at the receiving end of the Indian iron fist, have lost hope from Indian judicial systems not once but many times. Thousands of crimes like Machil, Pathribal, Kunanposhpora, Gawkadal, Hawal, Zakura, Bijebehada, Kupwara, Sopore (massacres) have been denied justice for decades now. India that often talks of magnanimity even fails in offering basic justice for Kashmir; for it has for long been seen as treating Kashmiris with malice yet at the same time wondering about reasons of the ever widening divide.

After Afzals hanging, Kashmir will be barricaded by the state with all means of normal life and communication shut by boots, barrels and iron fists. With Afzal silenced, Kashmiris will speak up again, for the countless injustices done to them at the hands of imperialism, for the denial of human dignity towards them. While India will be patting its back on the hanging of a Kashmiri and Indian media celebrating this bloodletting, they will pretend blind to the fires India is fueling in Kashmir and to the point of no return that it has pushed Kashmir to. What will be more shameful for India is that, Afzal in all likelihood will be buried in Tihar, denying him even a decent burial in his land. This burial will also bury all hopes for India in Kashmir (if there were any) with the common Kashmiris, more than ever before, realizing the futility of Indian democracy.

Indian prejudice again prevails against Kashmir.






9th Jan, 2013 ; 10:12 AM


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