Was injustice done to Afzal ?

Afzal Guru was hanged about a week ago and the execution stirred u quite a lot of discussion with some welcoming it and some intellectuals condemning it . I was beginning to wonder whether it was injustice as many of the intellectuals were claiming it. So, I decided to go thought the final verdict of the Supreme Court. I have not tried to examine whether the evidence was satisfactory or that whether it was genuine. I am not competent to do that. What I have tried to do is to see if the verdict was one-sided and unfair when looked at from a layman’s perspective. One of the often quoted passage from the judgement by Afzal sympathizers is this one.

The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender

This read in isolation does give an impression that the Court decided like, “The Parliament was attacked.  We need to show that we caught the culprits. Let us hang this fellow over here.” The above passage actually comes in the part where the Court is trying to decide on the punishment once concluding that Afzal Guru was guilty. The conscience part is being used to justify  death penalty for the offence, which the Supreme Court has recommended to be used only in “the rarest of rare cases”.

This paragraph comes a little  while before the above which I have never seen quoted anywhere else.

Short of participating in the actual attack, he did everything to set in motion the diabolic mission. As is the case with most of the conspiracies, there is and could be no direct evidence of the agreement amounting to criminal conspiracy. However, the circumstances cumulatively considered and weighed, would unerringly point to the collaboration of the accused Afzal with the slain ‘Fidayeen’ terrorists. The circumstances, if considered together, as it ought to be, establish beyond reasonable doubt that Afzal was a party to the conspiracy and had played an active part in various acts done in furtherance of the conspiracy. These circumstances cannot be viewed in isolation and by no standards of common sense, be regarded as innocuous acts. His conduct and actions “antecedent, contemporaneous and subsequent” all point to his guilt and are only consistent with his involvement in the conspiracy. Viewed from another angle, the Court can draw a presumption under Section 114 of Evidence Act having regard to the natural course of events and human conduct that the appellant Afzal had nexus with the conspirators who were killed and all of them together hatched the conspiracy to attack the Parliament House and in that process to use explosives and other dangerous means. We are, therefore, of the view that there is sufficient and satisfactory circumstantial evidence to establish that Afzal was a partner in this conspired crime of enormous gravity”

Reading the above, one can conclude that there was no doubt whatsoever in the Judge’s mind that Afzal was guilty. If it was fair to hang Ajmal Kasab, so it was to hang Afzal Guru.

One more thing that is often said is that the trial was unfair. I do not get any such impression ( at least about the appeal hearing in the Supreme Court ) because of the following facts.

The commuting of Shaukat’s death sentence. The Supreme Court rejected the confession statement given by Shaukat which was made to a Police officer. Common law dictates that confession statements need to be recorded by a magistrate. In this case POTA sections were invoked which allow confessions made to a police officer at least the rank of a DSP to be acceptable as evidence in court. The rejection was on the grounds that certain procedural safeguards for protecting the accused against forced confessions weren’t followed. It is important to note that excluding this has reduced Shaukat’s offence from being at the core of the conspiracy to “being aware but not coming forward to stop it without any valid reason”. To me  personally it seems like Shaukat was equally guilty, but was lucky that the evidence against him wasn’t that strong.

The court similarly rejected Afzal’s confession statement. But the other cicumstatntial evidence against him was so strong that even excluding the confession , his guilt was proven beyond doubt.  He as in close contact with the terrorists even moments before the attacks, arranged logistics, purchased ingredients for IEDs and so on.

Gilani and Navjot Sandhu’s acquittal by the Supreme Court as well as the HIgh Court. Reading through the Supreme court verdict, it is quite clear these two were nowhere near the core of the conspiracy as the other two.

So I reached the conclusion that this wasn’t a case where someone got punished just to make people happy, but a case where the law took its due course and found certain people guilty and certain others not guilty. Of course, it is a completely different matter that whether death penalty should be given in any case and whether it is alright for Governments to simply sit on clemency petitions for years.

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