A Collaborator in Kashmir #Afzalguru #mustread


  • By: Amitava Kumar
  • PUBLISHED ON MARCH 23, 2010,

“A Collaborator in Kashmir” appears in PEN America 10: Fear Itself.

After flights from Delhi to Jammu and then on to Srinagar, I rode north in a taxi to Sopore, closer to the Pakistan border. I’d come to Kashmir to meet Tabassum Guru, whose husband is on death row in Delhi. But when I stood before her, Tabassum waved me away. She had no desire to meet with journalists.

For his role in the 2001 attack on the Indian Parliament, Mohammad Afzal Guru was sentenced to death by hanging. Another defendant was condemned to ten years in prison; two others were acquitted. Afzal Guru’s hanging, scheduled for October 20, 2006, was stayed after a mercy petition was filed with the President. In its judgment on his appeal, the Supreme Court had recognized that the evidence against Afzal was circumstantial and that the police had not followed legal procedures. Nevertheless, the judgment stated, the attack on the Indian Parliament had “shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.”

In response, a group of Kashmiri leaders passed a resolution that read, in part, “We the people of Kashmir ask why the collective conscience of the Indians is not shaken by the fact that a Kashmiri has been sentenced to death without a fair trial, without a chance to represent himself?”

Afzal’s family could not afford a lawyer, and the court-appointed lawyer never appeared. A second lawyer was appointed, but she wouldn’t take instructions from her client and agreed to the admission of documents without proof. Afzal then gave the court four names of senior advocates, but they refused to represent him. The court chose another lawyer; this one said he did not want to appear for Afzal, and Afzal expressed a lack of confidence in him. But the court insisted—which is why the Kashmiri leaders asked whether it was Afzal’s fault that Indian lawyers thought it “more patriotic” to allow a Kashmiri to die than to ensure that he received a fair trial.

Only the naïve assume that the conflict in Kashmir is between fanatical militants and valiant soldiers. The real picture is darker and more complicated. In a system where the conventional economic nodes no longer function, and all resource lines intersect at some level with the security-state, there is a sense of enormous, often inescapable, dependency on those who are clearly seen as oppressors. This has bred complex schizophrenia. The writer Arundhati Roy has written, “Kashmir is a valley awash with militants, renegades, security forces, double-crossers, informers, spooks, blackmailers, blackmailees, extortionists, spies, both Indian and Pakistani intelligence agencies, human rights activists, NGOs, and unimaginable amounts of unaccounted-for money and weapons….It’s not easy to tell who is working for whom.”

Tabassum Guru illuminated this murky landscape in the night-flare of a statement she wrote for The Kashmir Times in 1994. “A Wife’s Appeal for Justice” is anguished and unafraid. It tells the story of how the police and the armed forces have turned Kashmiris into collaborators; although the statement is no more than fifteen hundred words long, it starkly demonstrates the costs of military occupation. She begins with her husband’s story.

In 1990, like thousands of other Kashmiri youths, Afzal Guru joined the movement for liberation. He had been studying to be a doctor, but instead went to Pakistan for training. He returned three months later, disillusioned. The Border Security Force gave him a certificate stating that he was a surrendered militant. His dream of becoming a doctor was now lost; instead, he started a small business dealing in medical supplies and surgical instruments. The following year, in 1997, he got married. Afzal was twenty-eight, and Tabassum eighteen.

After his surrender, Afzal was often harassed and asked to spy on other Kashmiris suspected of being militants. (Sartre, writing more than fifty years ago: “The purpose of torture is not only to make a person talk, but to make him betray others. The victim must turn himself by his screams and by his submission into a lower animal, in the eyes of all and in his own eyes.”) One night, members of a counterinsurgency unit, the Special Task Force, took Afzal away. He was tortured at an STF camp.

Dravinder Singh, one of the officers mentioned in Tabassum’s appeal, has been frank about the necessity of torture in his line of work. He has stated that torture is the only deterrent to terrorism. Singh spoke to a journalist about Afzal Guru in a recorded interview: “I did interrogate and torture him at my camp. And we never recorded his arrest in the books anywhere. His description of torture at my camp is true. That was the procedure those days and we did pour petrol in his arse and gave him electric shocks. But I could not break him. He did not reveal anything to me despite our hardest possible interrogation.” Azfal’s torturers demanded that he pay one lakh rupees, and Tabassum sold everything she had, including the little gold she had received when she married.

In the statement she wrote in 2004, Tabassum Guru sees her suffering in the light of what other Kashmiris have experienced: “You will think that Afzal must be involved in some militant activities that is why the security forces were torturing him to extract information. But you must understand the situation in Kashmir, every man, woman and child has some information on the movement even if they are not involved. By making people into informers they turn brother against brother, wife against husband and children against parents.”

After his release from the camp, where his interrogators had attached electrodes to his penis, Afzal needed medical treatment. Six months later, he moved to Delhi. He had decided that he would soon bring Tabassum and their little son, Ghalib, to a place he had rented. But while in Delhi, Afzal received a call from STF’s Dravinder Singh, his former torturer. Singh said that he needed Afzal to do a small job for him. He was to take a man named Mohammad from Kashmir to Delhi, which he did, and he also accompanied the same Mohammad to a shop where he bought a car. The car was used in the attack on the Parliament, and Mohammad was identified as one of the attackers.

As Afzal waited in Srinagar for a bus to Sopore, he was arrested and brought to the STF headquarters and then to Delhi. There he identified the slain terrorist Mohammad as someone whom he knew. This part of his statement was accepted by the court, but not the part where he said he was acting under the direction of the STF. Tabassum wrote, “In the High Court one human rights lawyer offered to represent Afzal and my husband accepted. But instead of defending Afzal the lawyer began by asking the court not to hang Afzal but to kill him by a lethal injection. My husband never expressed any desire to die. He has maintained that he has been entrapped by the STF.”

When I arrived in Sopore in my hired car, I noticed soldiers on the streets and on rooftops. There had been soldiers in Srinagar, too, but it was different here. We had left behind the painted roadside signs put up by the army and paramilitary units with messages like “Kashmir to Kanyakumari India is One.” In this town, there were only small, often half-finished houses and grimy stores. I got out of the car to ask about the hospital where Tabassum Guru worked.

She was at the cashier’s desk in the Inpatient Block, a tall woman in green shalwar-kameez, her head covered with a dupatta. She said she didn’t want to talk to me. I went outside to call friends in Srinagar, and learned that a week or two earlier two journalists from Delhi had done a sting. Afzal’s brothers had been collecting money for his defense but using the cash to buy property instead. The journalists had brought a spy camera and asked Tabassum if she felt that she had been betrayed by the Kashmiri leadership.

I decided to wait. I had come too far. Patients kept walking up to the entrance of the hospital, and a pony cart dropped off a sick woman. My driver, Shafi, having learned that I was visiting from New York, wanted to know where in America were the World Wrestling Federation’s matches held. We talked for a while, and then went inside the hospital again. A large crowd waited in the area marked Outpatient Block. Most people stood in the corridor, jostling against each other with a feverish energy that required good health. The few chairs were occupied and those who were sitting had adopted postures that suggested they’d been waiting for days. A sign on the wall said: UTILIZE YOUR WAITING TIME EFFECTIVELY—PLAN THINGS TO DO—MEDITATE—DO BREATHING EXERCISES—CHANT A HOLY NAME—READ BOOKS. I studied that sign for a while but felt agitated and decided to tell Tabassum that I was leaving. She nodded and half-smiled, then said goodbye.

From the road outside the hospital, lined with walnut and willow trees, I could see the snow-covered mountains. Shafi was full of ideas about how I might have persuaded Tabassum to talk to me. He said I should have told her that what I wrote would help her husband. But I had seen pictures of mobs in Delhi and elsewhere burning effigies of Mohammad Afzal; activists for the right-wing Bharatiya Janata Party had exploded firecrackers on the streets outside the courthouse when he was first condemned to death; the print and television media had repeatedly described him as a terrorist mastermind. How could I have assured Tabassum that what I wrote would help?

When the journalists had interviewed her about Afzal’s brothers, Tabassum had said that she had never asked anyone for money to help in her husband’s legal case. She had said, “Mera zamir nahin kehta” (“My conscience doesn’t allow it”). I thought of that statement again when, in Delhi a week later, I watched Sanjay Kak’s filmJashn-e-Azadi (How We Celebrate Freedom), which documents the cost of violence in Kashmir. An indigent woman in a hamlet is asked whether she has received the promised financial compensation from the armed forces for the wrongful death in her family. The woman, her hands beating her breast, replies, “They have snatched my child from my bosom. I’ll eat pig’s meat but not accept compensation from the army.”

Soon after my return from Kashmir to upstate New York, where I work, I read Orhan Pamuk’s memoir, Istanbul. In his youth, Pamuk wanted to be a painter, and he still saw his city with the eyes of an artist. “To see the city in black and white,” Pamuk writes, “to see the haze that sits over it and breathe in the melancholy its inhabitants have embraced as their common fate, you need only to fly in from a rich western city and head straight to the crowded streets; if it’s winter, every man on the Galata bridge will be wearing the same pale, drab, shadowy clothes.”

Reading those words, I thought again of Srinagar. I had flown in from “a rich Western city,” and everything there looked drab to me, draped in a dirty military green. Every house that was new looked gaudy and vulgar or curiously incomplete. Many structures were shuttered, or burnt black, or simply falling down due to disrepair. Pamuk writes that those who live in Istanbul shun color because they are grieving for a city whose past aura has been tarnished by more than a hundred and fifty years of decline. I believe Pamuk was also describing plain poverty.

Jashn-e-Azadi had shown me another Srinagar. The film’s richness lay in the space it created, in the viewer’s mind, despite the violence, for thought and for color. The filmmaker had discovered again and again in the drabness of the melancholy the gleam of memory: the memory of blood on the ground, of the beauty of the hills and red poppies, of the keening voices of mothers and painted faces of village performers. Also the memory of the dead, of falling snow, of new graves everywhere, and the shining faces crying for freedom.

In a travelogue written more than four decades ago, V.S. Naipaul described how out of the “cramped yards, glimpsed through filth-runnelled alleyways, came bright colors in glorious patterns on rugs and carpets and soft shawls, patterns and colors derived from Persia, in Kashmir grown automatic, even in all their rightness and variety…” In Kak’s film, riotous color is glimpsed only when we see tourists donning traditional Kashmiri costumes for photographs, holding pots filled with plastic flowers.

When I think of the melancholy of Afzal and Tabassum Guru, it isn’t color that I seek, but a narrative to give sustenance to their lives. That is what was powerful about the story that Tabassum told: She gave coherence to what had been their experience and the ways it resonated with the experiences of other young Kashmiri couples.

As with Pamuk’s Istanbul, I found traces of Srinagar in a film about another distant place. Paradise Now, directed by Hany Abu-Assad, tells the story of two friends on the West Bank, Said and Khaled, who are recruited to carry out a terrorist attack in Tel Aviv. The two young men are disguised as settlers going to a wedding. The would-be bombers get separated at the border, and the plan is called off, instigating some reflection and doubt on Khaled’s part. But Said is determined. We learn about his motivation when, in the company of Suha, a young woman who has just returned to Palestine, he goes into a watch shop, and Suha notices that videos are also available at the shop. These videos show the execution of collaborators, and Suha is shocked. She asks, “Do you think it’s normal that those videos are for sale?” Said replies, “What is normal around here?” Then he tells Suha, quietly, that his father was a collaborator. He was executed.

In Nablus, cars keep breaking down. Nothing works. The houses look either bombed or unfinished. In all of this, Nablus resembles Srinagar. Nablus is also like Srinagar in the ways in which its children are scarred by violence. I’m thinking of Ghalib, Afzal and Tabassum’s son, as well as thousands of other Kashmiris. It is horrifying but not difficult to imagine that many of them will find words to offer as testimony which are similar to those Said, sitting in an empty room, speaks to the camera just before he leaves on his suicide mission:

The crimes of occupation are endless. The worst crime of all is to exploit the people’s weaknesses and turn them into collaborators. By doing that, they not only kill the resistance, they also ruin their families, ruin their dignity and ruin an entire people. When my father was executed, I was ten years old. He was a good person. But he grew weak. For that, I hold the occupation responsible. They must understand that if they recruit collaborators they must pay the price for it. A life without dignity is worthless. Especially when it reminds you day after day of humiliation and weakness. And the world watches, cowardly and indifferent.

 

Protests against Afzal Guru’s hanging at Jantar Mantar, 21 detained


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GAUTAM NAVLAKHAS FACE SMEARED BLACK BY BAJRANG DAL GOONS

 

Muhammad Zulqarnain Zulfi : New Delhi, Sat Feb 09 2013, 1

Delhi police lathicharge protestors at Jantar Mantar, demonstrating against the hanging of Afzal Guru and detained at least 21 Kashmiri students. Female students were also assaulted.

The Kashmiri students were protesting against the ‘hanging’ of Afzal Guru when RSSBJP activists attacked them, witnesses say.

All the detained kashmiri students including girls were taken to Mandir Marg police station. Girls were threatened by the RSS activists.

Social activist Gautam Navlakha was also beaten up during the protest.

Senior journalist Iftikhar Geelani has also been put under house arrest since early morning today.

Media persons also faced the wrath of the RSS who also threatened dire consequences and barred them from doing their professional duties, witness say.

Mudasir, Jamia, Athar Rather Jamia, Umair Gul, Jamia, Umar Bashir, DU, Najeeb Hussain JNU, Fayaz Dar, Jamia, Aymon Majid, Jamia, Bhat Iqbal JNU, Shahid JNU, Insha Malik, Souzina Mushtaq, Samia Latief, Mustafa, Bhawneet, Shivani, Sabika, Umar, Aniben, Zamrooda Habib, Sanjay Kak and other detained Kashmiri students are perusing higher education in various universities in Delhi.

 

Press Release-Statement on execution of Afzal Guru


COMMITTEE FOR THE RELEASE OF POLITICAL PRISONERS

185/3, FOURTH FLOOR, ZAKIR NAGAR, NEW DELHI-110025

 

09/02/13

Condemn strongly the illegal act of executing Mohd. Afzal Guru!

Condemn and expose the violation of all procedures and law of the land!

Release SAR Geelani the working president of CRPP immediately and unconditionally!

 

The CRPP condemns strongly the illegal execution of Mohd. Afzal Guru. The central home minister and the home secretary have gone on record saying that every procedure has been followed in the case of Afzal Guru. None of his family members are aware of this decision of the Government of India. Nor do the lawyers of Afzal Guru. It is mandatory on the side of the government to inform the petitioners who had filed the clemency petition. Afzal’s wife Tabassum had filed a clemency petition demanding justice for her husband who never throughout the trial got an opportunity to defend himself and demand justice. She had in that petition even traced his early days in Kashmir and how he was continually being harassed and tortured by the notorious STF of J&K to act as an informer for the state. She showed in that petition how the ordeal has still been continuing in the life of her husband and their family in their quest for justice. The fact remains that neither Tabassum nor any of her family members have been informed about the rejection of this petition.

 

It is absolutely necessary that once a clemency petition is rejected the petitioner should be informed so that s/he can take recourse to other provisions that are guaranteed by the judiciary of India. There are provisions for judicial review which are quite exhaustive. But Afzal Guru was denied once again his last chance to represent himself and get relief from the gallows.

 

It should be noted that Mr. Bhullar who is also under death row in Tihar Jail had moved a petition in the Supreme Court to look into the matter of the delay in the execution of death sentence. There are case laws in the apex court wherein pronounced delay in the execution of death sentence is in itself grounds for converting the same into life. The court had appointed Mr. Ram Jethmalani as the amicus curiae in this case and was hearing the petition. That the Government of India under the Congress government has even subverted the Supreme Court in clandestinely executing the death sentence bemoans the real, fascist nature of this government which has scant regards for its own judiciary and law.

 

The clandestine execution of the death sentence of Mr. Afzal Guru violating all procedures and even the law of the land is nothing but desperate attempts of the ruling class parties like the Congress and the BJP to bet for votes appealing to the frenzy of jingoism. After having alienated the masses of the people and even the middle class through their anti-people, pro-market policies resulting in widespread miseries for the working people these parties have lost their faces and credibility and hence this desperate, brazen display of competitive jingoism on the life of someone who from the day one had never a chance to defend himself properly.

 

We at the CRPP appeal to all the democratic and progressive sections of the subcontinent to see through these devious designs of the ruling classes and forge a mass movement to abolish the evil of death penalty from the subcontinent.

 

The CRPP protests against the arrest of Prof.SAR Geelani who is our Working President while on his way to Malviya Nagar by the notorious Special Cell of the Delhi Police. The Special Cell as usual is browbeating in every possible way to terrorise the people from expressing their dissent against the clandestine execution of Mr. Afzal Guru. We demand his immediate and unconditional release. We call upon all progressive and democratic sections to protest against such fascist designs of the Indian state.

 

In Solidarity,

 

Amit Bhattacharyya

Secretary General

 

PA Sebastian

Vice President

 

MN Ravunni

Vice president

 

Rona Wilson

Secretary Public Relations

#India -Afzal Guru, Parliament attack convict, hanged in Delhi’s Tihar Jail #deathpenalty, protest today at Jantar Mantar


JOIN SILENT PROTEST AT  JANTAR MANTAR TODAY at 1.00pm AGAINST THE HANGING OF AFZAL GURU

Edited by Surabhi Malik | Updated: February 09, 2013 08:46 IST

Afzal Guru, Parliament attack convict, hanged in Delhi's Tihar Jail

New DelhiAfzal Guru, convicted for his role in the attack on Parliament in 2001, has been executed at about 8 this morning at Delhi’s Tihar Jail.The Home Ministry had recommended the death sentence for Guru on January 23, sources said, and President Pranab Mukherjee rejected his mercy petition a few days ago, clearing the way for his hanging.

Nine years ago, in 2004, Afzal Guru was given the death sentence by the Supreme Court. The sentence was scheduled to be carried out on October 20, 2006, but was stayed after his wife filed the mercy petition, which had been pending with the President’s office since.

The main opposition party, the BJP, has for long questioned the delay in the execution of Guru. Senior Congress leaders like Digvijaya Singh too said that a decision must come soon. But activists and political groups in Kashmir have argued that Guru was not given a fair trial. There have been many requests that his death sentence be commuted.

Afzal Guru is from Sopore in Kashmir and curfew has been imposed there and in other major towns in the valley, including Srinagar, just 35 kms away.  The army is on high-alert.

Separatist groups in Kashmir have earlier warned against Guru’s execution and Chief Minister Omar Abdullah has repeatedly stressed that it could have serious repercussions in his state. Mr Abdullah is in Delhi and is leaving for Srinagar immediately.

In December 2001, five heavily-armed terrorists drove into the Parliament complex and opened fire. Nine people were killed, most of them members of the security forces. All the terrorists were shot dead.

Both Houses of Parliament had just been adjourned and many MPs and ministers, including then Deputy Prime Minister LK Advani were still inside.

A few days later, Afzal Guru was arrested.

In November last year, Ajmal Kasab, the terrorist from Pakistan who was caught during the 26/11 attacks in Mumbai, was executed in a Pune jail.

 

I oppose #deathpenalty, #bobbitization, #chemicalcastration for #Rape will you KILL me ? #ShameonTOI #Vaw


Dec 21, Kamayani Bali Mahabal

Shame on you TOI. Take  down the Advertisement   the Poll  and apologize.

And  you have kept barabaric options of  bobbitization and chemical castration ?  

TIMES OF INDIA  YOU,YOU ALL HAVE LOST IT

RAPE” IS NOT DEATH OF A WOMAN, THATS WHAT  ALL OF YOU W ANT IT TO BE ?

ITS THE SOCIETY WHICH HAS ATTACHED THE SOCIAL STIGMA AND  YOU ARE PERPETUATING IT PATHETIC !

Parliamentarians should shout for  JUSTICE and Convictions , instead of saying things like ‘zinda lash’ (living corpse) and asking for death penalty.

Chemical castration breaches the physical intrinsity of the human body. As we have abolished physical penalties (chopping off hands, beatings etc), why would we re-introduce . Since castration is irreversible, should this penalty be allowed, especially as our judicial  system has been proven to be wrong every now and then. And tell me how will it work ? you will have to give injections fo depo vera— every time a rape is committed,  there will  someone  running behind the rapist on road to inject him ???

WITH THIS WHOLE CLAMOUR OF DEATH PENALTY, All the  Politician sitting in our parliament  are superficial people , the media wants more eyeballs and suddenly we have this knee jerk reaction to gang rape coming out in form of REVENGE and not JUSTICE. What a twisted logic is that  capital punishment will be an effective deterrent to potential rapists. The quantum of punishment does not deter crime. In fact, the higher the punishment, the lower the conviction rate.is required is speedy trial. Ensure speedy trials. That would deter would-be rapists.

If rape and violence against women are not rare but occur within every class, and at a variety of junctures, making the offense itself almost ordinary by nature of its frequency of occurrences, then to accord the death penalty for such cases would simply reduce convictions .Before the death penalty get the convictions right. 

The convictions against cases of violence against women, especially rape cases are themselves extremely complex and pivot around the nuanced issues of consent/force.  It is never a simple and straightforward matter to determine whether the woman had consented.  From the beginning? At what point otherwise? To what extent was she willing to have physical relations with a man? But at which point did it become force or coercion?  The entire issue of violence against women is not easily amenable to legalistic jargon that makes claims to truth “based on a binary logic which sets up oppositions like truth/untruth, guilt/innocence, consent/non-consent.  This binary logic is completely inappropriate to… the ambiguity of rape.

Women’s bodies as the new reason to kill ?

The point is “Death Penalty” to rapists is a reinforcement of the same “honour-shame” syndrome. Moreover why will the rapist not get rid of all possible evidence, which might take him towards death penalty? Yes, I mean why will he not kill the rape survivor in the end of the day? Moreover why should we go by the Sexual Hierarchy set by our patriarchal society? A sexual assault is a sexual assault and can’t be judged by the parameters of “penetration” alone. A Trauma is a trauma and can’t be judged by the parameters of “Honour” and “Shame”. In the end no woman loses her “honour” when she is raped. She loses it when she allows her mind to believe it.

The ideological underpinnings of the demand for the death penalty for rape reflect the traditional patriarchal and reactionary view of women as property.  Rape is seen not as an assault on the integrity of the women as assaulted, but far more as an assault of the community, of society, of the nation.The demand for death penalty  hides  certain power relations and assumptions made by those advocating the death penalty.  Furthermore, they point to the fact that bringing in the death penalty for rape will not in anyway increase convictions, but may lower the already very low-levels of convictions because of fear to convict any rapist incase of error. 

 The death penalty weighs the scales of justice heavily in favour of the state by giving the state legally sanctioned power over the life and death of its citizens.  Such power all too often is used arbitrarily; it is applied neither uniformly nor fairly, even in cases of the same nature and severity.  In many cases, the decision to apply the death sentence is driven by issues other than the crime itself.

By playing to the desire for revenge in individual cases, states in which the death penalty is used ignore difficult questions about the relationship between crime, the criminal and the state.  A fake sense of moral superiority is thus sustained as culpability is shifted from formal and informal social, political and economic structures of domination and oppression, solely to the accused.

  Hence for  me , a FEMINIST ,  these promises of security, better safety and liberty have been questionable and problematic.  It hides the strong link between justice and the state and how justice may operate to benefit certain parties only.  The  use of women’s bodies and the category of violence against women to insist on the death penalty is a manipulation of the feminist agenda and its concern for women into a tool by others (including but not exclusively the state) to control and discipline its citizens further.

As suggested by Foucault, the prison itself maybe a new way of ordering society, of disciplining it and creating new forms of docile bodies constituted in such a way as to make the power of the state and certain groups more effective.  It is important then to rethink forms of correction and punishment to ensure that those convicted of crimes are not merely placed in another institution in which power is even more insidious than even the death penalty or public executions.

skirtfinal

 

 

#India- a ray of hope for Afzal, other death-row prisoners


V. VENKATESAN , The Hindu, New Delhi Dec 17, 2012

  • A recent Supreme Court ruling could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru. File photo
    The HinduA recent Supreme Court ruling could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru. File photo

Supreme Court ruling gives the benefit of the doubt to accused

The Supreme Court judgment, in the case of Sangeet v. State of Haryana, delivered on November 20 could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru, whose mercy petitions have been turned over to it by the President for fresh advice.

The one mercy petition presently pending with President Pranab Mukherjee, after the receipt of advice from Union Home Minister Sushilkumar Shinde, also carries the taint of flawed death sentence by the Supreme Court.

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh v State of Punjab (1980) is the source of contemporary death penalty jurisprudence in India. It limited the death penalty to the rarest of rare crimes, and laid down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal. However, the application of its principles by the courts to various cases has been very uneven and inconsistent.

The Sangeet judgement has reaffirmed that Bachan is the correct precedent for awarding death penalty. The relevant findings of the two-Judge Bench comprising Justice K.S. Radhakrishnan and Justice Madan B. Lokur in Sangeet, to paraphrase, are:

1. The reliance on Machhi Singh v. State of Punjab, delivered by a three-Judge Bench in 1983, as a valid legal precedent by many subsequent Benches to justify death sentences is flawed. Machhi Singh sought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. These are completely distinct and different elements and cannot be compared with one another. A balance sheet cannot be drawn up of two distinct and different constituents of an incident. Bachan Singh resolutely refrained from balancing these elements, because it leads to arbitrary decisions by a Judge.

2. Machhi Singh sought to standardize crimes into five absolute categories, in order to identify the rarest of rare crime deserving death sentence. These five categories are manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder. These categories enlarge the scope for imposing death penalty that was greatly restricted by Bachan Singh.

3. Despite Bachan Singh, primacy still seems to be given to the nature of the crime. The circumstances of the criminal, referred to in Bachan Singh, appear to have taken a bit of a back seat in the sentencing process.

The Hindu has scrutinized each Supreme Court judgment in the 15 cases and found that applying Sangeet the executive could recommend commuting the death sentences in all the cases.

 

Amnesty asks India to commute Guru’s death sentence #deathpenalty


BJP wants Afzal Guru hanged next

 

London, December 14 (KMS: The human rights watchdog, Amnesty International has expressed concern over the fate of mercy petitions including that of a Kashmir youth, Afzal Guru whose sentence, according to the Amnesty, by a special court under the Prevention of Terrorism Act does not conform with India’s obligations under international human rights law.

Amnesty International Chief Executive, G Anantha Padmanabhan in a letter to the Indian President, Pranab Mukherjee, on Thursday asked New Delhi to abolish death penalty and stop further executions after Ajmal Kasab and commute death sentences to imprisonments.

Referring to the execution of Ajmal Kasab, the Amnesty chief executive said that “by executing him, the Indian government has violated the internationally recognized right to life and signalled a step away from the regional and global trends towards abolition of the death penalty.”

Anantha Padmanabhan said Amnesty is concerned about the manner in which Indian authorities carried out Kasab’s execution on 21 November, 2012. “A notification by Indian Ministry of Home Affairs, published on the same day, stated that you had rejected his petition for mercy on 5 November”.

“According to reports, Ajmal Kasab himself was only informed of this rejection on 12 November. It is unclear whether he was aware of possibility of seeking a review of the decision. Information about the rejection of the petition for mercy and the date of execution was not made available to the public until after the execution had been carried out. Authorities in India have made public claims that this lack of public announcement and secrecy surrounding the execution were to avoid intervention by human rights activists,” he said.

“Transparency on use of death penalty is among fundamental safeguards of due process that prevent the arbitrary deprivation of life. Making information public with regard to legislation providing for the death penalty as well as its implementation allows for an assessment of whether fair trial and other international standards are being respected. In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights called upon all states that still maintain the death penalty “to make available to the public information with regard to the imposition of the death penalty and to any scheduled execution,” the Amnesty official added.

“Amnesty is disappointing that the Indian State has chosen to carry out Ajmal Kasab’s execution in this manner,” he said.

“Amnesty is concerned about a further nine petitions for mercy involving 14 individuals that have been sent to the (Indian) Ministry of Home Affairs for consideration for a second time, which we understand is usual practice when there is a new minister in office. On December 10, 2012, Indian Home Minister told reporters he will review the petitions before him after the end of the winter session of Parliament. One of these petitions concerns Mohammad Afzal Guru who was sentenced to death for his alleged involvement in the 2001 Parliament attack. Mohammad Afzal Guru was tried by a special court under the Prevention of Terrorism Act. Amnesty has found that these trials did not conform with India’s obligations under international human rights law,” Anantha Padmanabhan said.

He said Amnesty opposes death penalty in all cases without exception, regardless of the nature or circumstances of the crime; guilt, innocence or other characteristics of the individual; or the method used by the state to carry out the execution. “It opposes it as a violation of the right to life as recognized in the Universal Declaration of Human Rights and the ultimate cruel, inhuman and degrading punishment.”

He said the use of death penalty in India is riddled with systemic flaws. Of particular concern are: the broad definition of “terrorist acts” for which the death penalty can be imposed; insufficient safeguards on arrest; obstacles to confidential communication with counsel; insufficient independence of special courts from executive power; insufficient safeguards for the presumption of innocence; provisions for discretionary closed trials; sweeping provisions to keep secret the identity of witnesses; and limits on the right to review by a higher tribunal.

“On behalf of Amnesty International, I urge Indian president to commute all death sentences to terms of imprisonment Immediately halt plans to carry out further executions, and establish an official moratorium on executions as the first step to abolishing the death penalty,” Anantha Padmanabhan said.

He said wherever mercy petitions have been rejected, the government should respect the practice of promptly informing the individual, his/ her lawyers, his/ her family, of the decision, reasons for the decision, and proposed date of execution, as well as the public, of any scheduled execution.

Done to Death -Politics of punishment #deathpenalty


Manoj Mitta | November  2012, Times Crest

 

 

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The higher the penalty, the greater the rigor that the courts are expected to display in arriving at the decision. It is however hard to apply this principle, ironically enough, to the highest possible penalty: namely, death. This has been admitted by the highest court of the land over and over again, the last time being literally on the eve of Ajmal Kasab‘s hanging. In a verdict delivered on November 20, Justice Madan Lokur said that in capital offences “it has become judge-centric sentencing rather than principled sentencing”.

But then, can this be said even about the decision to hang Kasab? If there was ever an open-and-shut case of capital crime, it was of course that of the only attacker to have survived the 26/11 massacre. So, whoever the judges were at the three levels of courts that had handled his case, it was most unlikely that any of them would have spared him the noose. It takes a crime of the magnitude of 26/11 to carve an exception to Justice Lokur’s formulation that the recourse to the death penalty depended on the judge rather than any principle. There was still an element of uncertainty about the punishment awarded to Kasab. And that was whether he would be executed at all and, if so, when.

This uncertainty was demonstrated in Kasab’s case by the utter secrecy and suddenness with which he was transferred to Pune and hanged there, early in the morning on November 21. It came as a complete surprise because even the President’s rejection of Kasab’s mercy petition had been kept under wraps for over a fortnight. A lot of high-level political decisions were involved in Kasab’s execution, beginning with the home ministry’s recommendation to the President to reject his mercy petition to taking a call on where he should be hanged to whether the hanging should take place so soon after Bal Thackeray‘s death.

Thus, whether it is about its pronouncement or about its execution, the decisions on death penalty are based more on politics than on law. Consider the manner in which the Kasab hanging triggered off a debate between the ruling and opposition parties on the longpending mercy petition of Afzal Guru, who had been sentenced to death in the Parliament attack case of 2001. Amid reports of the home ministry having recommended Guru’s hanging as well, it is uncertain as to where exactly the file is pending as of today. Unlike Kasab, Guru was not among the actual attackers. If Guru’s fate is still sought to be linked with Kasab’s hanging, at least in the public discourse, it is yet another indication of politics being a predominant factor.

There is a wide range of ways in which the subjectivity of politics has shown its edge over the objectivity of law in the context of death penalty: None of the major political parties has taken cognizance of the Supreme Court’s admitted inability to evolve a uniform standard for determining the “rarest of rare cases” in which the death penalty can be imposed. In recent years, the Supreme Court has repeatedly admitted the incongruity of weighing aggravating and mitigating circumstances to determine whether a convict fell in the rarest of rare cases. Since aggravating circumstances relate to the crime and mitigating circumstances relate to the criminal, the apex court’s latest verdict said: “The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review. ”

This was as close as the judiciary could have come to admitting to the arbitrariness inherent in most cases of death penalty. The horrendous implication is that death penalty is being imposed on standards that are not entirely justifiable or uniform. Yet, none of the political leaders participating in the death penalty debate has deemed it fit to call for a review of the very policy of retaining that irrevocable punishment in the statute book. The political silence on the churning within the judiciary on the efficacy of the death penalty testifies to the larger social indifference to this human rights issue.

Though Kasab’s hanging is just the second in over a decade, India has never adopted a moratorium on the death penalty despite a global trend. NGO, When Dhananjoy Chatterjee was hanged in 2004, it was after a lapse of six years. Kasab’s execution came after a lapse of eight years. The executions are so rare although courts, bound as they are by the law, have been every now and then awarding death sentences. The fault-line between the pronouncement of death sentence and its actual execution testifies to the increasing discomfort within the system. The very low frequency of executions was widely perceived as a tacit moratorium on death penalty. In fact, while responding to Kasab’s execution, Human Rights Watch, a global NGO, lamented the lifting of the moratorium in India. This was despite the fact that India, defying a global trend, has consistently refused to support UN resolutions calling for a moratorium on death penalty. The last such instance was virtually on the eve of Kasab’s hanging.

Kasab’s mercy petition was disposed of ahead of those like Guru who have been awaiting the President’s decision for far longer periods. Politics is writ large on the decision to give precedence to Kasab’s mercy plea over that of Guru’s. For, being a Pakistani national, and given the gravity and incontrovertible nature of his crime, there was little domestic support for Kasab. Afzal Guru on the other hand is seen by sections of Kashmiris as a symbol of India’s alleged excesses in their state. This is particularly because of Guru’s claim that he had a long record of being victimized by security forces in Kashmir and that it was at their instance that he had got mixed up with the conspiracy to attack Parliament. Whatever the intrinsic merits of the two cases, the extraneous factors made it easier for the government to take up Guru’s case ahead of Kasab’s.
Kasab was denied his right to challenge the President’s decision although the execution of other high profile convicts has been stayed by courts even after their mercy petitions had been rejected. Ever since this right has been laid down by the Supreme Court in Kehar Singh’s case in 1988, there have been several instances of death row convicts obtaining stay orders on their execution on various grounds even after the President had rejected their mercy petitions. The three Rajiv Gandhi killers, for instance, obtained a stay last year from the Madras high court on the ground that the President had decided their mercy petitions after an inordinate delay. The hush-hush manner in which Kasab was executed within days of the President’s decision betrayed a political resolve to avoid the risk of a judicial stay on his execution. The political calculation clearly was that the government had everything to gain and nothing to lose by executing Kasab.
Balwant Singh Rajoana’s execution has been stayed by the government although he never appealed against the death sentence or sought pardon. The killer of former Punjab chief minister Beant Singh is a rare death row convict displaying courage of convict. His principled refusal to ask for mercy forced the Centre to stay the execution on its own to avoid political trouble in Punjab.
No policy debate so far on replacing hanging with more humane forms of execution such as lethal injection. Although the Law Commission about a decade ago recommended the lethal injection as an alternative, the government has so far shown little inclination to make any reform on the death penalty front. Hanging is part of popular consciousness in India and there is no political will to replace that form of punishment, however barbaric.

 

#India-WHIPLASH: Capital punishment as a joke #deathpenalty


By ABHISHEK BHALLA

PUBLISHED: 21:41 GMT, 25 October 2012 | , MailonlineIndia

    • The home ministry’s decision to recommend to the President that Mumbai attacker Kasab‘s mercy petition be rejected will fool a few into believing that the mass killer will be executed soon.

But, as our poor death row record shows, they are going to be disappointed. In fact, those who bat against the noose on moral grounds don’t need to take recourse to such principles. As far as India is concerned, there is a much more convincing reason why it ought to be abolished: This is a provision of law that is almost always observed in the breach.

The death sentence may be handed out in the rarest of rare cases, but even then our law enforcers have regularly failed to go the final mile. You only need to look at statistics. The last death sentence was carried out in Alipore jail in Kolkata way back in 2004 when Dhananjoy Chatterjee was hanged to death for raping and killing a 14 year old girl.

Will Mohammed Qasab be the first person to receive the death penalty since 2004? Will Mohammed Qasab be the first person to receive the death penalty since 2004?

These delays are not difficult to explain. For, after the Supreme Court awards the death penalty, begins a complex procedure for seeking the President’s clemency. And this is the point where the provisions turn ambiguous – and open to crass politics.

What else can explain the Tamil Nadu assembly passing a unanimous resolution last year urging the President to review his stand after the mercy petition of Rajiv Gandhi’s killers was dismissed?

A similar attempt was made in the Jammu and Kashmir assembly to get the case of parliament attack convict Afzal Guru reconsidered. This makes it almost certain that Kasab’s death sentence will also be put on hold.

Incidentally, the Mumbai attacker has become the 309th convict to be placed on death row. This track record suggests that it would make sense to do away with the death penalty altogether, if only to spare the law a good deal of embarrassment.

Pardoning President – commutation of 30 death sentecnes


By Syed Nazakat and Vijaya Pushkarna
Story Dated: Monday, June 11, 2012

Commutation of 30 death sentences

Guns for her roses: Pratibha Patil

When President Pratibha Patil vacates the Rashtrapati Bhavan on July 25, she would have the dubious distinction of having commuted the highest number of death sentences to life imprisonment. During her tenure, she showed clemency to 30 convicts, condemned prisoners who had killed 60 people, including 22 women and children.
Among those granted pardon include Molai Ram and Santosh Yadav, who in 1996 had gangraped and murdered the 10-year-old daughter of a jailer on the premises of a prison in Madhya Pradesh where they were inmates; Dharmender Singh and Narendra Yadav of Uttar Pradesh, who had killed a couple, their two sons and 15-year-old daughter, whom they had earlier tried to rape; Piara Singh of Punjab and his three sons, who had massacred 17 persons of a wedding party on a personal rivalry; Sushil Murmu of Jharkhand, who had sacrificed a nine-year-old boy out of superstition; and Satish, who had raped and murdered a five-year-old girl in Uttar Pradesh in 2001.
For many people, the presidential pardons have come as a shock. “In many cases, the victims were raped, sexually assaulted and tortured before being murdered,” said a schoolteacher. “Pardoning them sends a wrong, sad message.”
Patil’s predecessors, A.P.J. Abdul Kalam and K.R. Narayanan, had granted clemency in only one case each. Patil’s extraordinary generosity has led to a fresh debate on death penalty in India. The focus is now on what Patil has not done—she has not decided on the mercy petitions of Afzal Guru, convicted in the 2001 Parliament attack case; Khalistan separatist Devinder Singh Bhullar, who tried to kill Youth Congress president Maninder Singh Bitta in 1993; and Balwant Singh Rajoana, who assassinated Punjab chief minister Beant Singh in 1995.
The BJP, the main opposition party in Parliament, has been criticising the Centre for its ambivalent stance on the death penalty debate. BJP leader Prakash Javadekar says “those who have acted against the country” should be hanged immediately. When Home Minister P. Chidambaram was criticised for the delay in executing Ajmal Kasab, who was convicted in the 2008 Mumbai attacks case, he had told Parliament: “We have to decide as a nation whether we want to follow the rule of law or not.”
Patil, in her zeal to grant presidential pardons, appears to have squandered the chance to send out a clear signal on the issue. During her term, she rejected three mercy petitions and commuted sentences in 19 cases, involving 30 convicts. She, however, has not taken a call on 10 mercy petitions, including that of Afzal Guru.
Realising that the pardons could be politically explosive, Rashtrapati Bhavan officials are pulling out all the stops to give them a positive spin. Presidential spokesperson Archana Dutta told THE WEEK, “The President has adhered to the rule book while dealing with mercy petitions. It is incorrect to say that it is on account of her personal belief [against death penalty] that she has commuted these death sentences.”
Many people, however, disagree. “So many mercy pardons may send the wrong signal about our legal procedure,” said senior advocate Gopal Jain. “It is not clear what parameters she used to commute the death sentence in 19 cases and reject the other three.”
Said a senior politician: “Here is a President whose stint at the Rashtrapati Bhavan has been daubed with controversy on many fronts, including the recent land allocation issue. Her office is working overtime to contain bad press. The President could have absolved herself of her rather lacklustre tenure by taking decisive action on an issue that concerns the security of the people of this country. But, instead, she appears to have chosen to tread a safe, political path.”
Human rights and pro-life lobbies view the presidential pardons as an indication of the way India is moving in the larger debate favouring abolition of capital punishment. Although India has not abolished capital punishment, it has rarely been carried out after the 1983 Supreme Court ruling that death penalty should be imposed only in “the rarest of rare cases”. Since 1995, only one execution, that of Dhananjoy Chatterjee in August 2004, has taken place. Dhananjoy was convicted of raping and murdering a schoolgirl in 1990.
Under the law, the death penalty can be imposed for murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government, abetting mutiny by a member of the armed forces. Recently, special courts extended the penalty to cases of terrorism and the Supreme Court has recommended that it be extended to those found guilty of committing honour killings and to cops involved in brutal fake encounter killings.
Death penalty, however, has been a sensitive issue. In Tamil Naidu, widespread public rallies were conducted to seek clemency for the Rajiv Gandhi killers. A person even burned herself to death to protest the imminent hangings. Local politicians insisted that the hangings would be a “betrayal of the Tamils”, and would provoke popular fury.
A similar kind of fury was witnessed in Punjab when the Shiromani Gurdwara Parbandhak Committee, which functions as a parliament of Sikhs, demanded that the state 
government fight to save Balwant Singh Rajoana, the assassin of Beant Singh. The Akal Takht, which is the highest temporal seat of Sikhs, has conferred the title of Zinda Shaheed, or living martyr, on him. In Kashmir, Afzal Guru’s death sentence has been an emotive issue. Few doubt Afzal’s involvement in the 2001 Parliament attack. But serious questions remain over the investigation and trial, carried out under the now-defunct Prevention of Terrorist Activities Act.

With widespread instances of custodial abuse, legal experts have been campaigning for the abolition of the death penalty. They argue that there is no empirical evidence to suggest that the death sentence works as a deterrent. The delays in carrying out the executions have also been pointed out. Said B.S. Bilowria, a Supreme Court lawyer: “The long delays in executing the death sentences are extra punishment. It is in addition to the punishment of death and, therefore, it becomes unconstitutional. You cannot give a person double punishment by first locking him in a prison cell for years and then hanging him after a decade or so.”

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