In the five years since Afzal Guru was sentenced to death, he has died several thousand times. Every night, when the guards locked him in his cell, he would have been forced to face the terror of his impending end. Every night he has swung from hope to despair and back, over and over again, as sleep eluded him. And every night, he will have imagined what his last moments would feel like, and wondered how he would find the courage to face them.
Kept hanging between life and death, between hope and despair, he has been denied even the time to accept his end and find the strength within himself to face it with dignity. This has driven him to the edge of madness and made him beg to be put to death immediately. but the Law has been as impervious to his pleas for death as it has so far been to others’ pleas to spare his life.
Every inquiry about what the government intends to do; every demand to hasten the president’s decision on his mercy petition, has been met with the lofty response, that there are a score of ‘cases’ ahead of him in the queue, so the wheels of justice cannot be speeded up for him alone. Of all the grotesque parodies of democracy that we live with, this insistence upon equality among the condemned is the most heartless.
But what is the grand process of Law that is taking so long? Last week we found out that it consisted of no more than some official in the Delhi state government losing Guru’s file for four years. but was his file really lost? Or was this Sheila Dixit’s favour to a central government that knows the moral and political cost of hanging Guru, but cannot muster the courage to recommend to the president that she commute his sentence to prison for life?
Only the hopelessly naïve will not know the answer. The truth is that from the day he was sentenced Afzal Guru has been the foil in a no-holds-barred fencing match between the BJP and the Congress. Every other consideration — the morality of the death sentence, the injunction that it be applied in the rarest of rare cases, the possible impact of his hanging upon the youth of Kashmir, upon India-pakistan relations, and upon relations between the Hindus and Muslims of India — has faded into the background.
The match was not begun by the Congress. From the day that Guru was sentenced to death, the bjp has filled the air with taunts, diatribes, and accusations of cowardice and lack of patriotism, aimed at steamrolling Manmohan Singh’s government into hanging him regardless of the cost.
The BJP has been doing so because it believes that the death sentence on Guru has created a win-win situation for it no matter what the government decides. A grant of clemency to Guru will allow it to stoke Hindu chauvinism to improve its chances of coming back to power. But if the UPA hangs Guru, it may set off a chain reaction of violence in Kashmir and other parts of India that could destroy the secular centre of the country and force voters to choose between the extremes of ‘pseudo-secularism’ and muscular Hindu chauvinism. Frighten the Hindus enough, the bjp believes, and the latter is bound emerge the winner.
This is not a new game. The Sangh parivar has been using hate as a weapon of politics ever since it launched the Ram janmabhoomi movement in the early eighties. Segments of the parivar continued to do so even during the benign ruler Atal Bihari Vajpayee. And the parivar embraced it yet again in 2008 when it sent its most fanatical rabble-rousers to jammu to fan hatred of Kashmiri Muslims during the Amarnath Yatra land controversy.
The mere fact that the BJP is doing its utmost to get Guru hanged is therefore the best reason for the Congress to recommend clemency to the President. But there are a hundred other reasons for doing so. The oft-cited flaws in the adjudication process are not among them. Afzal Guru’s guilt has been confirmed by the very same courts — the Delhi High Court and the Supreme Court — that threw out the conviction of SAR Gilani for lack of evidence and reversed the verdict on Afsan Guru (wife of Shaukat Hussain Guru, Afzal’s cousin and another accused who was later released) because of failure to prove her complicity beyond reasonable doubt.
What is troubling is the sentence of death that has been passed on him. Since the Supreme Court’s 1983 ruling — that the death penalty should be awarded in only the rarest of rare cases, courts have struggled to define the criteria on which to make this distinction and made a poor job of it. This had resulted in hundreds of death sentences being commuted by the Supreme Court or the President. Possibly as a reaction to this in recent years, the lower courts have begun to pass death sentences with an abandon that has made a mockery of the Supreme Court’s ruling.
In Guru’s case the Supreme Court did admittedly uphold the sentence in 2006. but two death sentences handed down only within the last fortnight alone make it imperative to re-examine the legal consequences of carrying it out. One is on Ajmal Kasab for the murder of 74 persons in Mumbai on november 26, 2008. The other is the death sentence passed on Surinder Koli for raping and killing a young girl in Nithari, a suburb of east Delhi.
Koli is a psychopath and a serial killer. Kasab is a hatefilled fanatic who has snuffed out scores of lives purely for the sake of shaking his fist at the Indian State. Guru, on the other hand, has actually killed no one. He was a facilitator for a crime that would have been truly heinous if it had succeeded. but he believed he was striking a blow for Kashmir’s freedom. His motives were therefore similar to those of Laldenga, who led the Mizo insurgency for 24 years before striking a deal with new Delhi to end it. They are, therefore, as different from those of Kasab or Koli as day is from night.
What is more, the attack on Parliament failed. If Guru is hanged it will be for what he tried to do and not what he actually did. The law must surely distinguish between an accessory to a plot that succeeded and one that failed.
For all of these reasons, therefore, if president patil turns down Guru’s plea for mercy she will further weaken whatever is left of the restraint put upon the use of capital punishment by the Supreme Court in 1983.
In the end, the grant of clemency is a political, not a legal decision. Manmohan Singh would therefore do well to assess not only the threats that hanging Guru could create, but also the opportunities that sparing his life could present for furthering the cause of peace. Maqbool butt’s hanging in February 1986 sparked the insurgency that has taken at least fifty thousand lives over the past 24 years. Sparing Guru could begin to reverse the build up of bitterness and alienation that began then. It cannot, in any case, fail to strengthen the hands of the moderates in the valley who do not wish to close the door to a negotiated settlement with Delhi.
The grant of clemency to Guru will also make it easier for the Gilani government in Islamabad to resume the dialogue with India on Kashmir that was interrupted by Musharraf’s downfall. Hanging him will make that nearly impossible.
Lastly, India will only realise its true potential as a nation if it succeeds in dousing the fires within the country and in the countries around it. With its armed forces fully stretched already, and a new threat in central India, setting new fires is the last thing any government should contemplate doing.
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