Afzal
Afzal

The life and death of a surrendered militant

The secret hanging of Afzal Guru is another blot on India's political class and national consciousness.

Rakesh Shukla has more than three decades of engagement with law, constitutional jurisprudence, human rights and justice, along with training and practice in psychodynamic therapy. Explorations in the interface of law, social movements for change, and psychoanalysis are the major areas of his work.

Afzal
Afzal

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? – Albert Camus

In an operation cloaked in complete secrecy, Mohammed Afzal Guru, 43, was hanged on the morning of Saturday, 9 February 2013, at Tihar jail in Delhi. The operation was code named 'Operation 3 Star' as Afzal was lodged in Jail Number 3 of the prison. With Kafkaesque irony, officials conducted a medical examination at 3 am that same day, with the doctor pronouncing Afzal to be healthy, with normal blood pressure, and presumably fit to be killed – a requirement for cold-blooded execution by judicial and executive diktat. It appears that executing a sick person would not fulfil the Supreme Court's 2005 judgment: "the collective conscience of society will only be satisfied if capital punishment is awarded to the offender". The use of the word 'award' to order the death of a person seems strange, but is in tune with the notion of playing god, exercising the power of life and death over a fellow human being.

Delay and speed
After keeping the threat of death hanging over Afzal for more than seven years, the executive moved with lightning speed this month – the President rejected the petition for mercy on 3 February, the Home Minister gave his approval on 4 February, and Afzal was executed on 9 February. Almost exactly 29 years earlier, on 11 February 1984, Maqbool Bhat, the co-founder of the Jammu and Kashmir Liberation Front (JKLF), was hanged in the same jail. Bhat became an icon for the cause of Kashmiri independence, and there is still a shutdown in Kashmir Valley every year on 11 February to commemorate his death. Hanging Afzal Guru on 9 February, while possibly an oversight by an executive not in tune with Kashmiri sensibilities, brings home the correlation between this execution and the struggle in Kashmir. The executive rushed the execution – ignoring legal prescriptions for informing the family and allowing appeal against the rejection of a petition for mercy – not for fear of 'enemies of the nation' mounting a rescue of the convicted 'terrorist' but, more dangerously, for fear of  intervention by the courts. For the Union Government – entrusted to uphold the rule of law – to subvert the Constitution, which allows judicial intervention after rejection of a clemency plea, speaks volumes about the state of governance in India.

In the Kehar Singh judgement in 1988, the Supreme Court categorically ruled that the president's power under Article 72 of the Constitution to commute or pardon a death sentence "falls squarely within the judicial domain and can be examined by the court by way of judicial review". Kehar Singh, convicted on doubtful evidence as a conspirator in the assassination of Indira Gandhi in 1984 by her two bodyguards, was executed in January 1989. Still, there have been a number of instances where Indian courts have intervened to stay executions after the president's rejection of a petition for mercy. One prominent example is the case of Murugan, Santhan and Perarivalan, sentenced to death for the assassination of Rajiv Gandhi on 21 May 1991. On 12 August 2011, the three were informed that their petition had been rejected, and that their executions had been scheduled for 9 September 2011. This gave them vital time to exercise their right to appeal. They approached the Madras High Court to stay the execution order on grounds of inordinate delay – 11 years – in the response to their petitions. The High Court entertained the petitions and stayed the executions. Subsequently, the Supreme Court decided to hear these petitions too, and the matter is pending.

The delay of over seven years in the disposal of Afzal's petition should have been considerable and sound basis for inviting similar judicial intervention. Kehar Singh's case is not the only one that sets relevant precedent. In 2002, the Supreme Court upheld Devinder Singh Bhullar's death sentence for killing nine people in a 1993 blast in New Delhi that targeted the cavalcade of the Congress youth leader Maninderjit Singh Bitta. Bhullar's request for clemency was rejected on 25 May 2011, and he has since petitioned the Supreme Court to commute his death sentence to life imprisonment on account of the inordinate delay in rejecting his plea. The Supreme Court, while hearing Bhullar's petition, has decided to enlarge the scope of the matter by scrutinising all petitions for mercy pending before the president and state governors. In another instance, the president took 12 years to reject a plea for leniency from death-row convict Mahendra Nath Das, and Das' subsequent plea for commuting his sentence to life imprisonment was also dismissed by the Gauhati High Court. Das then petitioned the Supreme Court, contending that the president's delay in deciding upon his fate had resulted in 12 years of excruciating agony and trauma, providing valid ground for commuting his sentence. This matter is also pending decision. In the case of Vijayavardhana Rao and Chalapati Rao, two young men slated to be executed in December 1996, a petition by a civil liberties group, the Peoples' Union for Democratic Rights, resulted in a stay of execution and the commutation of their sentences to life imprisonment. That Afzal Guru was denied his right to appeal raises questions over the constitutionality of his execution.

Actus reus
Consider the events which landed Afzal on death row on two counts: waging war against the state, and criminal conspiracy to murder. On the cold winter morning of 13 December 2001, just before noon, five armed men in an Ambassador car packed with explosives drove through the gates of the Indian Parliament compound. The car had a fake Home Ministry sticker which read:

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