(Assistant Professor, Faculty of Legal Studies, South Asian University, New Delhi, India.)
Afjal Guru’s hanging is being depicted as an act to send a strong message and to strengthen democracy as he was involved in the attack on Indian parliament which is being depicted as symbol of Indian democracy. By equating the attack on parliament as an attack on democracy, and since he was convicted in the case of attack on democracy, it is reasoned that in his hanging alone and not in the punishment of any other form Indian democracy gains strength. This reasoning of democracy primarily reduces the whole issue to the politics of revenge by the state through the relatively narrow prism of the legal pronouncement which affirmed that hanging alone satisfies the public conscience but not by establishing the guilt beyond doubt.
There has been a criticism that Afjal Guru’s conviction was based on insufficient evidence and the reasoning of the Supreme Court for awarding death penalty was to satisfy the collective conscience of the society rather than upholding the rule of law. Those who justify the reasoning of the Supreme Court and also the death sentence counter this view by juxtaposing the acquittal of SAR Geelani, Delhi University teacher, and another person who were accused in the case. They show this to demonstrate the fairness of justice in the case and argue that those who welcome the acquittal of Mr. Geelani cannot doubt the reasoning of the judiciary in the case of Afjal Guru. This view is fallacious, apart from the fact that Afjal Guru did not get the necessary legal assistance during the trial stage which is crucial in any criminal case, because it cannot be ruled out that judicial reasoning can be influenced by the social background and other antecedents of the every individual accused leading to different conclusions in respect of the different accused persons in the same case.
It is a fact that these arguments no longer held much water because the matter was decided irreversibly by the highest court of the country as the review petition was also dismissed. However, it could have been a strong ground for commutation of the death penalty to life imprisonment. Despite the strong momentum for the abolition of death penalty, India continues to retain it for rarest of rare cases. Regardless of the criteria laid down in Bachan Singh (1980) case,it is found to be difficult to classify a crime under this category, a concern which was also expressed by the Supreme Court in Sangeet & ANR vs. State of Haryana (2012). Devoid of its political significance, the attack on parliament would have been any other crime and it can be reasonably argued that it might not have necessarily attracted the criteria of rarest of rare cases which essentially has to be interpreted in the narrowest possible sense. Its political significance needs to be emphasized because addressing such issues effectively is better pursued through political processes than through severe punishment, in this case death penalty.
Justice for the victims’ families
It is being argued that through hanging Afjal Guru, justice is done to the families of those who lost lives in the hands of the attackers. It is like arguing that justice can only be done by robbing the robber, torturing the torturer or killing the killer. It is to be kept in mind that gravity of punishment is not the same as the crime itself. Therefore criminal justice system cannot be driven by the anger and agony of the kith and kin of the victim but by considerations of the crime and its impact on larger society without at the same time losing sight of the fact that a criminal is the product of the same society where the crime is committed. Thus any form of sentence which is arrived at through the judicial process, which is in consonance with the prevailing human rights and humanitarian standards should be considered as delivery of justice rather than imposing the punishment which is same as the crime.
Contempt for the crime and not for the criminal
It is essential that the causes of crimes need to be explored to prevent future crimes. Despite the need to understand crimes in their larger context, it becomes difficult to remain normal when a crime takes place which invites immediate anger of many. However, this anger needs to be confined to condemning the crime and not the criminal as such. Succumbing to this anger towards the criminal would lead to depriving him of basic humanitarian standards. This is what has happened in the case of Afjal Guru. His family was not informed of the hanging. After the hanging his dead body was not handed over to the family members which is one of the fundamental humanitarian considerations which the government is expected to follow in such situations. Even in situations of war, international law imposes similar obligations on parties to a conflict. Those who justify the government for not handing over the dead body should be aware that there were several cases of encounter killings in which the governments did refuse to handover the bodies to the relatives. However, in several such occasions,courts in Andhra Pradesh and elsewhere ordered the handing over of the dead body to the relatives. There was no reason in this case not to do the same, except the apprehension that it might have led to protests and unrest in the Kashmir valley. This is an unfair consideration and nothing but applying double standards because the Indian government refused to take into consideration the same factor for commuting the death penalty to life imprisonment.
To raise these concerns is not to argue for exoneration of those involved in crimes but to call to respect procedural and substantive legal requirements and humanitarian standards which, and not just the tangible objects like the parliament, are real symbols of democracy and the strength of any democracy lies in them and not in hanging.