By Shubh Mathur, Open Democracy, 23 – 10 – 2006
The case of a Kashmiri Muslim convicted for terrorism raises serious questions about the operation of Indian democracy.
On 4 August 2005, the supreme court of India upheld the death sentence on Mohammed Afzal Guru, a resident of the town of Sopore in northern Kashmir, adding that his "life should become extinct" to satisfy "the collective conscience of the society." He was to have been executed on 20 October 2006, but the hanging has been postponed pending the filing of another plea, known as a curative petition, to the court. (The petition is expected to be filed after the five-day break for the Diwali festival break, which begins on 21 October.) If Afzal Guru's sentence is carried out, it will represent an extraordinary miscarriage of justice and consequently raise serious questions about the functioning of Indian democracy.
Afzal Guru, along with three others, was charged with planning the attack on the Indian parliament in Delhi on 13 December 2001. In that attack, five gunmen were shot dead by Delhi police; nine policemen were also killed. Within forty-eight hours, the police had arrested Afzal Guru, his cousin Shaukat Guru, Shaukat's pregnant wife, Afsan, and Syed Abdul Rahman Geelani, an Arabic professor at Delhi University.
At the crucial trial stage, Afzal Guru was denied the legal counsel of his choice; his court-appointed lawyer did not meet with him even once. Afzal's family says he was tortured, interrogated and forced to confess without counsel present. He was paraded before TV cameras by officers from the Delhi police's special cell, an outfit now discredited for its corruption and violence. The special court constituted under India's (now-repealed) Prevention of Terrorism Act (Pota) – presided over by Justice Shiv Narain Dhingra – sentenced all four on 18 December 2002. Afzal Guru, Shaukat Guru and Geelani were sentenced to death and Afsan Guru to five years' imprisonment.
Following an appeal, the Delhi high court acquitted Geelani and Afsan Guru in October 2003, but upheld the death sentences of Afzal and Shaukat Guru. The court acknowledged, however, that the Delhi police had fabricated evidence and extracted forced confessions, which were not to be relied upon. In August 2005, the supreme court took the extraordinary step of throwing out Afzal Guru's confession, but upheld the death sentence imposed following his conviction, which was based solely on inconclusive circumstantial evidence linking him to the attack on the parliament building. (Shaukat Guru's death sentence was reduced to ten years in prison.)
An ideal scapegoat
Capital punishment in India is supposed to be handed down only in the "rarest of rare cases." Afzal Guru's alleged role in the conspiracy does not fit the supreme court's own description.
As a surrendered militant living in Delhi, under constant surveillance by the police, Afzal Guru was hardly a likely mastermind of an international conspiracy. He was, by the same token, the ideal scapegoat. While prison conditions in India are a nightmare by any standards, prisoners belonging to religious minorities, and particularly Kashmiri Muslims, are specially singled out and punished by fellow prisoners and prison authorities who proclaim their patriotism by abusing so-called "terrorists".
A public appeal by Afzal Guru's wife, Tabassum, in October 2004 gave the details of his treatment at the hands of Indian counterinsurgency forces and in prison. Afzal Guru's letters to his lawyers and supporters make it clear that he was used as a pawn by the Delhi police throughout the investigation and trial, forced to make false confessions and to acquiesce in their manipulations, for the safety of his family.
Equally disturbing are the implications of Afzal Guru's revelations for the role of shadowy counterinsurgency agencies in manipulating and even creating terrorist attacks. The attack on the Indian parliament became the occasion for a military mobilisation which brought India and Pakistan to the brink of war. For the government then in power, led by the Hindu nationalist Bharatiya Janata Party (BJP), which was plagued by scandals and corruption charges, the attack was an opportunity to rally the nation against its "enemies" – Pakistan and the country's Muslim minority.
The 2002 violence against Muslims in the state of Gujarat was instigated and supported by the BJP state government . This violence also provided the climate of public opinion in which Afzal Guru – a Kashmiri Muslim – could be sentenced to death.
A life in suspension
Unequal justice compromises the Indian claim to be a secular democracy. National-security laws such as the Terrorism and Disruptive Activities (Prevention) Act (Tada, in effect 1985-95) as well as the Prevention of Terrorism Act (2002-04) – which allowed for lengthy "preventive detention" without charges – led to sweeping arrests of thousands of men and boys belonging to the Muslim and Sikh religious minorities.
Of 80,000 detainees held under Tada, fewer than 2% eventually were found guilty of terrorism-related crimes. Although both Tada and Pota no longer exist, many people arrested under these laws are still awaiting trial.
Other laws, such as the Armed Forces Special Powers Act, the Disturbed Areas Act and the Public Safety Act – copied nearly verbatim from British colonial legislation – are in effect in Jammu & Kashmir and the northeast; they give wide-ranging powers to Indian military personnel while providing immunity from prosecution for human-rights violations. These laws have produced patterns of human-rights abuses in Kashmir and the northeast similar to those found in "dirty wars", when an army treats a civilian population as the enemy. Many of these abuses have been carried out by pro-India militants (variously known as "renegades" or Ikwanis (from Ikhwan-ul-Muslimeen / Special Operations Group) – essentially counterinsurgency death squads trained for the purpose.
Supporters have set up an online petition on Afzal Guru's behalf, yet Afzal Guru has refused to ask for clemency; he has no faith in the Indian judicial system to treat a Kashmiri Muslim fairly. His wife and 8-year-old son, Ghalib, met with India's president, APJ Abdul Kalam, on 5 October to request clemency; there is as yet no further word.
Shubh Mathur is visiting assistant professor of anthropology at Connecticut College. Her first book, The Everyday Life of Hindu Nationalism: An Ethnographic Account, is being published by the Three Essays Collective , Delhi
More information about the case of Mohammed Afzal Guru can be found here