Tuesday, February 12, 2013

The Attack on the Parliament and Hanging Afzal Guru.

 This is a transcript of a recent conversation with my friend Oldtimer Otee – based on a questionnaire he provided- on the most recent burning issue- Afzal Guru’s hanging..

Otee : any thoughts on the legality of the issue? Fairness of trial and adherence of procedure?

GP : Well, Otee I am not by any stretch of imagination a Legal expert. So I can only comment on it from a layman's point of view. But due process of law? In India we do Due process of law...to death (pun intended of course).  We follow a leisurely trial process and adherence to procedure till the accused sometimes dies before the judgment is delivered. Remember Rajan of Brittania industries? He fled to India from Singapore fearing the swift Singapore justice dispersal and trusting to the Indian legal systems adherence to the letter of the procedure and he died before he could be convicted. There is no hurry in the Indian judiciary, even our fast track courts take their own sweet time to deliver. 
           Which is not a bad thing at all, as it gives us the confidence that like the british system before it, we allow the accused to take their time to mount the best possible defense as their guilt can permit. All the accused in the parliament attack case had more than adequate legal representation and legal defence courtesy various human rights organizations and fringe political elements and hence some of the other conspirators like Sar Geelani were able to get the benefit of doubt and hence acquitted. In gurus case, his guilt was proven beyond doubt in all the various courts of law and the only factor which delayed his punishment were political complications and not legal considerations.
          That said I would also like to talk about an important aspect often overlooked. If there is one lacunae of Indian legal system it is not in the prosecution but in the investigation. The police are often the ones who cut corners in their eagerness to achieve results. Even in this case the prevailing opinion is that they arrested guru earlier than they said in the report and based on his confession they had arrested Geelani. But due to the shoddy paperwork and fudging the arrest time of guru, they invalidated the authenticity of his confession implicating Geelani - which in turn allowed the other conspirators to walk free citing alibis. The police failed to realize that in high profile cases the adherence to proper investigation and paper filing should be meticulous to a fault -to prevent a clever defense attorney from picking holes. We should hope that in future, the police who are often the first ones on the scene should be more careful in their approach to investigation and abandon their laissez faire attitude- at least in high profile cases of national importance.

Otee: what do you feel about the legality of the death sentence?

GP : ah, there you have me Otee. I know that the modern trend in democratic countries is to move away from the death sentence not only for human rights considerations but also because it has been proven to have no deterrence value. Historically a death sentence in public was used to strike fear in the hearts of the watching populace and to dissuade them from planning crimes. But terrorism has made that argument specious. Be it the JUD terrorists who attacked parliament or the LTTE terrorists who killed Rajiv Gandhi, they were prepared to face death when they signed up for the mission. Hence death sentence for them has no fear as it has for any ordinary criminal. But the value of death sentence as a retributive punishment still remains. The law is supreme in India. If you break the law, you should suffer punishment – that alone restores confidence in the impartiality of law. So, I would reluctantly agree with the contention that in the rarest of rare cases, as decreed by our supreme court, we need to hang the convicted criminals.
            I would also like to remind you here that these terrorists like kasab, guru and perivalan cannot plead mitigating circumstances as a defense. Guru cannot say he killed in self-defense- the Indian parliament never went and attacked him with a knife. Guru cannot plead a sudden and grave provocation- the Indian parliament was not caught red-handed sleeping with his wife. As this is a clear cut case of a well-planned criminal conspiracy, indeed planned outside the country's borders according to reports, the hanging of guru reinforces the prestige of the law as in “the long arm of the law will catch up with you, however clever your crime is”

Otee : And what about the political considerations? Did they dictate the action?

GP: hmm....should I even answer this one. The whole country knows the reason that the sentence was delayed beyond a reasonable time frame because it was politically inconvenient to carry it out expeditiously. What I don’t understand is why our political masters disregard the sentiments of the silent majority in favor of a vocal minority of fringe elements. As you know I am a big fan of history and a war-buff in particular. Every single treatise of war from the commentaries of Caesar to McArthur's pacific campaign stress on not being boxed into a corner and allowing events to dictate action. The government could have woken up a bit earlier to the prevailing public sentiment and   not waited till the Gujarat elections showed them the mood of the country in matters of national defense. This was after all an attack on parliament- the seat of the highest authority of the land- our elected representatives, who represent “We, the people” as defined by our Constitution and hence a direct attack on all of us. A few vote banks here and there should not have been allowed to dictate terms to this affront to the whole country. When it comes to national defence, the overall national identity supersedes all regional identities. We are just Indians, not Kashmiris, Gujaratis or Tamils.
           Plus, think about this- our MP's are public servants- a fact which they conveniently forget after election- but still they are our(peoples) servants and shouldn't we safeguard our servants from attack? As good masters are obligated to?

Otee: What’s your own take on this GP?

GP: I am tempted to quote to you from Conan Doyle’s story Silver blaze where his detective Sherlock Holmes expostulates to Watson on the “curious incident of the dog in the night time”. When Watson astonished says “but the dog did nothing” Holmes replies “precisely”. Which is exactly my take on this issue. Its not who talked of this, but who didn’t which interests me so much.  Of course, we have had the mandatory leftist rant of Arundhati Roy and the rejoinder of the establishment via Praveen Swami. But it’s the silence of the usual suspects which amuses me. Do they sense this is a dead issue? Or is it something which should be best preserved till election time? I am still awaiting our highest constitutional functionaries, our opinionated TV anchors, television fame political personalities and the recently minted self-appointed guardians of the country's conscience to jump in and offer their perspectives on an issue of such national importance. My take- in a nutshell- Good Riddance.


  1. Nice write up!!!! Fast track courts are those where a fact track out let s present inside the court. ..I know its s PJ but whatever happens n our country d worse than this PJ

    1. to hell with political correctness Sahithya...lets all speak the truth

  2. Thanks for this post Ganesh. Being a regular reader of your posts, I kind of anticipated your answer wrt to the judicial process in this case, but was perhaps looking (hoping) for a different response.

    From my above statement it is obvious that I was (am) looking for a justification for not having carried out the death sentence. While his complicity in this event is not questioned, I ask whether his role was that of the mastermind, or an active participant in the actual task, to deserve the death penalty?

    What is the cost of this action wrt Kashmiris and Kashmir? Wouldn't it lead to more alienation than build trust?

    Is it the same situation as that in TN wrt to the Rajiv Gandhi assassination and the death sentence on the conspirators? [I think not, because the Tamils in TN do not feel alienated from the rest of India as the Kashmiris are].

    Is the sentiment for the next election the only criterion for doing it now?

    What is the cost of this action on the peace process in Kashmir?

    I know all these questions have nothing to do with the process followed and is my personal, subjective rant.

    Disclaimer [where is the commentor coming from]:
    The commentor has been working in J&K for the past year or more, and feels that this action could lead to a sense of further alienation among Kashmiris.
    It is also the view of the commentor that, sometimes, mercy should be valued higher than justice.

    1. V, the premise of my blog is to give the lesser or unheard view...as such i almost never follow the given wisdom on any such topic.

      does he deserve the death penalty? yes he does, even if he is not a direct participant - but only acted on a supporting role- any one, any person who decides to visit an act of terror on a non-combatant or a civilian deserves to die. whatever your grievances- collateral damage is never justified. as one of the ordinary citizens of the world, i go about my life in the hope that i will survive the day to live my life. i have hopes, aspirations and ambitions of everyday life. to have that cut short because somebody somewhere was politically disaffected over a boundary line settled in historical antecedence is not an excuse to me- if i or someone like me- loses their life.

      cost of this action on kashmiris - the same answer above- the kashmiris cannot in all good conscience defend a mass murder based on regional considerations. over and above regional identity there is a question of belonging to the larger humanity

      And same goes for the tamils if the support the LTTE conspirators.

      Cost on peace process? peace process in kashmir is a non starter- historically no peace process has ever succeeded in religious polarization conflicts- they have a tendency to play themselves out over time- read the 100 years war between the protestant and catholic countries of Europe

      and of course the upcoming elections seem to have forced the hand of the govt in taking an immediate decision- no doubts about that.

      and thanks for asking me these questions- you forced me to examine my own thoughts and motives in depth- something which i rarely allow myself the luxury of indulging in.

    2. I agree with the principle of treating a terrorist on par with a mass murderer. All this would be fine in a just and fair government; what gets my goat is the double standards often seen when meting out punishment. Those who can be dispensed with are summarily done away with while there are those who literally get away with murder due to political considerations.
      Thanks for answering my questions Ganesh.