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MARCH-2013 ISSUE
Force Magazine
Collective Complicity
The government killed a terrorist but resurrected a martyr
By Ghazala Wahab

Rumours travel faster than the speed of sound in the valleys of Kashmir, joked one local politician a few months ago. On the morning of February 9, it was news that was travelling fast, faster than the event itself, almost by an hour. Around seven in the morning, I got a call from a Srinagar-based journalist.
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“They have hanged Afzal Guru,” he said.
I immediately switched on the television news. There was nothing. I called him back.
“There were rumours a couple of days back that he would be hanged,” he explained. “Today, there is a sudden curfew in Srinagar. The police are even stopping journalists from going to work. The news channels are off air. Obviously, they have hanged him,” he insisted.

So much for home minister’s assertions of secrecy. As it turned out, according to the official version, Afzal Guru was indeed hanged on February 9, but at 8 am.
But Afzal Guru had died long, long ago. Nearly two decades before his body was hanged inside Delhi’s Tihar jail. One senior Indian Army officer posted in Srinagar had told me a few years ago that the lifespan of an average militant/terrorist is only a year or less from the time he decides to take up the gun.
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“Either he is killed while ex-filtrating or infiltrating. If he survives both, he is killed a few months after infiltrating. In fact, some are killed even before they are able to carry out a terrorist activity,” he had said.

By this reckoning, Afzal was a dead man in the early Nineties when he crossed the Line of Control to go to Pakistan for training. By surrendering to the Border Security Force in 1993-94, he tried to cheat death and those who had written his death warrant.

He didn’t know then, that none of these take kindly to cheating. All his efforts to resume a normal, uneventful life were stonewalled by a State that operates on neatly laid out white and black lines of nationalism and anti-nationalism; even though the instruments of State frequently walk in the murky zones of opportunism, self-interest and greed between these lines.

Once he was labelled black, he simply couldn’t wash the stain off his hands. He could have been smarter, and settled for grey. Perhaps, he could have cheated death after all. But he was foolish and wanted to turn white. Who could have allowed that either in the state of Jammu and Kashmir or India, where perception is passed off as truth and popular opinion for justice.

Perhaps, Afzal was complicit in the conspiracy to attack Indian Parliament. Perhaps, he was not entrapped by the nationalist Special Task Force (STF) comprising renegade militants and opportunist policemen. Perhaps, he was not forced to condemn himself in front of the national media by the over-zealous and unbiased Delhi police. Despite all these uncertainties, nobody, not even the ultra-nationalists who carry their patriotism in their cacophonous voices and underlying threats of violence, can deny that Afzal did not get a fair trial.

Human rights lawyer and author Nandita Haksar, who represented Afzal’s family after his death sentence and helped him file the mercy petition with the President of India says, “From the moment Afzal Guru’s trial started in the Special Court, he was doomed. No lawyer agreed to represent him. The court appointed an amicus curie who accepted Afzal’s confession made to the police without question, thereby admitting to his guilt. Then she left the case and another amicus was appointed by the court. He refused to represent Afzal and Afzal refused to be represented by him. But the court insisted that Afzal be represented by him. The result of this disinterest was that when the prosecution produced 80 witnesses against Afzal, the amicus cross-examined or made observations against only 20. And even these were inconsequential. The same story was repeated in the high court. A Muslim lawyer was appointed by the judge, who didn’t even show his face in the court. In the atmosphere that was prevailing in India at that time, which Muslim lawyer could have risked his life and career by representing a Muslim man, from J&K, and accused of being a terrorist? Subsequently, Afzal gave a list of a few lawyers, none of whom agreed to represent him. In any case, given his financial condition, he couldn’t afford a ‘commercial’ criminal lawyer. Eventually, the court-appointed lawyer implicated his own client by suggesting that he be killed by a lethal injection instead of being hanged. The Supreme Court observed all these weaknesses in the case and even absolved Afzal from the charge of being a member of any terrorist organisation. Yet, it felt compelled to uphold the death sentence to satisfy the ‘collective conscience of the society’.”

Ironically, even the most vociferous campaigners of ‘death to Guru’ do not dwell upon the dubiousness of the case. They resort to a comparative argument, saying that since the same court had acquitted SAR Gilani, another accused in the Parliament attack, how could it go wrong in Afzal’s case? There cannot be a more spurious reasoning. Judges are human beings and as susceptible to mistakes or being swayed by emotions as any other person.

In the 1982 case of Bachan Singh versus the state of Punjab, even while pronouncing the death sentence, Justice P.N. Bhagwati who headed the bench, registered his protest by writing, “The views of Judges as to what may be regarded as ‘special reasons’ are bound to differ… depending upon… value system and social philosophy with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious.”

This was not Justice Bhagwati’s view alone. There have been instances of judges regretting pronouncing death sentences in retrospect. For example, Justice Y.V. Chandrachud who was part of the bench that gave death sentence to Kehar Singh, one of the accused in Prime Minister Indira Gandhi’s assassination, subsequently admitted to a sense of ‘gnawing remorse’ because of Kehar Singh’s distant role in the conspiracy, to such an extent that he became an opponent of death penalty.

More recently, Justice K.T. Thomas, who headed the bench that sentenced Prime Minister Rajiv Gandhi’s assassins to death, said that the convicts should not be hanged as they have already served a sentence longer than life. He has publicly urged to President to review his rejection of their mercy petition. Even if belatedly, many judges do realise the subjectivity of a death penalty.

The Law Commission of India realised this way back in 1967, when in its report on capital punishment it said, “There are many matters which may not have been considered by the Courts. The hands of the courts are tied down by the evidence placed before it. A sentence of death passed by a court after consideration of all the materials placed before it may yet require reconsideration because of (a) facts not placed before the courts (b) facts placed before the courts but not in a proper manner (c) Acts dissolved after passing of sentence (d) events which have developed after passing of the sentence, and other special features.”

Perhaps, there wasn’t much really that the judges could have done in Afzal Guru’s case, especially in the early phase of the trial in 2002 when the jingoistic public opinion was manufactured through a capitulated media baying for Afzal’s blood. Those were the times when, in the immediate aftermath of 9/11, Bharatiya Janata Party-led National Democratic Alliance was hard-selling the idea of ‘zero-tolerance’ for terrorism, exclusive nationalism, creating a society of ‘us’ versus ‘them’ and all sorts of ‘patriotic’ defence and police personnel were flocking to it by the dozens.

The State was labelling its own citizens as anti-nationals; those who didn’t agree with their idea of patriotism or even those who didn’t sing Vande Mataram! A Kashmiri journalist, Iftikhar Gilani was imprisoned for nearly a year under Officials Secret Act; two young men were killed in Delhi’s Ansal Plaza mall in what was suspected to be a fake encounter and remains dubious till this day. Incidentally, it was the police star of that encounter, ACP Rajbir Singh who had the previous year solved the Parliament attack case within a few days and presented Afzal to the media. Apart from these well-known cases, there were innumerable instances of people being frequently rounded up on suspicion by the over-zealous police and held without trial for indefinite periods.

Given the opaque cloak of nationalism which had descended on the country, it was too much to expect the judges to really care about ensuring a fair trial to a renegade Kashmiri ‘terrorist’. If the US could invade another country to avenge 9/11 attacks, the least India could do was hang one man, who in any case would have died! Afzal was extremely dispensable.

Afzal Guru’s mother, wife and son, GhalibDead Man Talking
A few days ago, the Kashmiri journalist called again. Apparently, names of a couple of former STF officers, one of whom is now a SSP, who offered Afzal for slaughter to the Delhi police, have been leaked in the Valley. While one has fled his post, the other is trying to encash his IOUs with local politicians and senior officers.

The STF and the JKP officers who probably trapped Afzal are not evil men. Nor were the Delhi police officials who, according to Afzal’s mercy petition, tortured him. They are as pragmatic as the Separatist politicians and to some extent the people of Kashmir are. They look at both the big and the small pictures. For the police, Afzal was nobody; for the Separatists, he was a prospective icon, another Maqbool Butt, perhaps; for his extended family, he was a person more profitable dead than alive. For their sake, Afzal had to die.

Probably, Afzal was conscious of his absolute dispensability. Even in his mercy petition to President APJ Abdul Kalam he frequently wrote that he has no hope of survival and that he has written the petition primarily for the sake of his mother, wife and son, the three people who had sought (and got) an audience with Kalam, and who saw Afzal as a person who must be given a chance to change his destiny.

Afzal had tried very hard to resume his normal life as a fruit-seller, but was constantly thwarted by the STF and other security forces. When his wife and mother sought to do the same, they were thwarted by Afzal’s own extended family comprising his brothers and cousins, who saw in him a martyr, who would change their lives. They imagined that if Afzal is hanged, the family’s stature in Kashmir would rise as Maqbool Butt’s family’s did. They expected financial support and a place in the Separatist pecking order as family members of a martyr.

According to a veteran Kashmiri journalist, “Afzal was no Maqbool Butt. He was an ordinary Kashmiri boy who crossed the LC as many others did. Even after his surrender, his fate was similar to hundreds of Kashmiri youth who were and are frequently tortured by the security forces and forced to become informers. But once he was implicated in the Parliament attack case, he rose above ordinariness.”

Suddenly, even the Separatists in Kashmir realised that Afzal can be converted into a heroic martyr, albeit a reluctant one. While Afzal and his wife could not afford a lawyer, nothing stopped the Separatists, flushed with wealth, to hire a lawyer to save an innocent Kashmiri. But then Afzal may have lived at the cost of a martyr. And in Kashmir, that would have been sacrilege. Nearly 24 years of brutalisation, fear and suspicion has ripped the Kashmiri soul to such as extent that it can longer distinguish between larger humanity and personal opportunity.

Today, Afzal is the totem around which the Separatists are hoping to revive their fortunes. And to show to the ordinary Kashmiris — wrapped in their everyday troubles — that Afzal was no accidental terrorist, but a man given to profound thoughts of azadi and courage, a letter, purportedly written by him during his incarceration, has been published in a Kashmiri newspaper so that his martyrdom is not questioned. For this, the Separatists will remain eternally grateful to the United Progressive Alliance (UPA) government which has finally shed its squeamishness or pretensions (depending upon your point of view) to emerge as the proud inheritors of the NDA’s legacy of absolute and exclusive nationalism, which has no room for a contrary view.

World of Terror
As a child, one of my recurring nightmares was going out of my home and then not being able to find my way back. As the Afzal Guru saga unfolded over the decade and I came to know more about his life, I was reminded of my nightmare. Imagine a world where you take one wrong turn, and can never ever return home. To family. Security. Normalcy.

Afzal may yet attain immortality, and in that sense redemption, but so many unknown young lives are constantly being snuffed out in places as diverse as Kashmir, Jharkhand, Chhattisgarh, Manipur and so on, simply because they took one wrong turn in their lives. And sometimes not even that. Sometimes, they have just been on the wrong side of the nationalistic debate. And sometimes, even worse: Sometimes they were simply dispensable; or valuable to certain police or military officers, in death; who could then claim gallantry awards or commendations on their dead bodies.

It is convenient to blame rogue men in uniform for their greed or dishonesty; but it is not right. Senior officers often explain away such acts as aberrations or argue that the offenders are products of our times and society. They are right. Indeed, our times and society have been instrumental in creating such monstrosities. After all, what does it say about our moral compass or our ‘collective conscience’ that we can pour out on the streets in thousands to protest against corruption but don’t even squeak on issues of human rights violations?

Why is it so easy to abuse those who talk of violations as people with dodgy patriotic values? Why do we find it convenient to blame the victim for the violence that befell him or her? Why do we convince ourselves that nation means territory and not people with different voices? Why do we always buy the stories fed to us by a short-sighted, opportunistic government that all this is being done to strengthen our national security?

Shouldn’t national security be a sum total of individual security? Can a nation of insecure, frightened people, convinced that they will never get justice, ever be secure? From inside and outside? Can we be secure as a nation, if an average Kashmiri or a Chhattisgarhi tribal continues to feel insecure? Or is reduced to the status of a half-human, to whom the human courtesies of politeness, respect and honour need not be extended? When the State claims to go tough on terror, I go weak in my knees. I don’t want my security to be built on the carcasses of mislead, misunderstood or unheard of people.

Afzal is dead, because he had to die. His blood is as much on Kashmiri hands as anybody else’s. The least all of us can do is raise our collective voices whenever the State and some of it subjects try to create another Afzal. We no longer want it on our conscience.

           
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