So, Mohd. Afzal Guru was hanged. The nation rejoiced, and our brethren from Kashmir felt even more alienated. The only question I am trying to address in this issue is whether hanging was the only option left with the government.
First, let us begin with understanding how the criminal justice system views punishment. The main theories of punishment are as follows, retribution, deterrence, rehabilitation and incapacitation. Severe punishments like the death penalty or life imprisonment can be justified under either of the retributive, deterrent and incapacitative theories. In cases relating to terrorist or extremist movements the only rational classification can be under the theory of incapacitation. This is because of the following reasons, firstly, as would be obvious from a bare reading of the Indian Penal Code, India doesn't believe in a retributive system. Secondly, as regards deterrence, it is an inadequate theory for cases relating to extremist and terrorist movements. Thus, to ensure that terror activities are not repeated the state endeavors to incapacitate as many terror figures as possible. This I humbly submit is the right approach to take, as survival of the state is of utmost importance to any nation.
Any extremist movement is against the political set-up of the state. Whether justly or unjustly, these groups portray the state as an oppressor so as to garner sympathy from the local population. In such a scenario, I think it is important for a state to maintain its credibility in the eyes of its people. It is an age old saying under common law that, "justice should not only be done, but should manifestly and undoubtedly be seen to be done". This becomes even more important in areas, where the state is seen as an oppressor.
In the present case Afzal Guru was tried and sentenced to death for the attack on the Indian parliament. He took all the regular routes of appeal, and at all stages his death sentence was affirmed. He then applied for clemency to His Highness the President of India. somewhere around October, 2006. His mercy petition was finally rejected on 3rd February, 2013, after a gap of nearly 6 years. The government carried out the death sentence on 9th of February 2013.
The actions of the state seem to be completely faultless in the above scenario. But, we should also note these further facts about this case, firstly, there was no intimation to the family about the impending death of Afzal. The letter sent by the jail authorities only reached the family two days after the hanging. This seems to me as a denial of a basic right which all prisoners are afforded, the chance to meet their dear ones. The state defends its actions by stating that they had posted the letter, but in this day of instant communication, are we being made to believe that it was just bad luck that the letter never reached its destination on time. I tend to disagree. These decisions were taken at the highest levels of the Home Ministry. And if the state had so desired, a timely intimation could have been issued to the affected family.
Secondly, the Apex Court in various cases has discussed the need for expedient decisions on clemency petitions. It has also been held that if a clemency application is on hold for a long time, the Court can convert the death sentence to one of life imprisonment. This is an important recognition of the rights of a prisoner. A person on a death row can't be made to die a 1000 deaths, before his actual death, and hence the need for expediency in carrying out a death sentence. The state in its hurry to carry out the death sentence, prevented the accused from approaching the Apex Court for commutation of his sentence on grounds of delay. The importance of this last legal remedy, is evident from the fact, that the Supreme Court has in the immediate past, stayed the hangings of some key Veerappan aides on similar grounds.
These discrepancies don't make illegal the actions of the state. But, they do cast a shadow on the credibility of the state. They also hint at the possibility that these actions were nothing, but political opportunism.
The decisions of the Apex Court are part of the law our land. Then what was the necessity facing the government, that it had to carry out the death sentence in such a hurry, without letting the accused exercise his final legal remedy. If it is agreed that incapacitation is the goal for punishment under terror cases, then what difference would it have made, if the accused was incarcerated for life.
I have read about a lot of justifications for the actions of the state. Most of them being on the grounds of national security. My question is, whatever be the justifications , are those enough to pay for the costs of alienation of an entire chunk of our citizenry? National security is of paramount importance. But, can the same issue of national security be used to damage irreparably the threads of this nation. Can policies aimed at our survival as a nation, in actuality lead to our ultimate decline. These are questions with no easy answers.
I don't know whether the actions of state were mere bad policies, or whether it was done to garner maximum political mileage. But, either ways its high time, we as a nation, sought a review of these policies. Terrorism is not just a security issue, it is also a social issue, and we cannot continue with policies which result in alienation of our fellow citizens. A nation is made up of its citizens, and if we were to lose our fellow citizens, it won't be long before we loose our country as well.
God Bless India.
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