Having said that, it is not unreasonable for someone to disagree with the court’s final determination. The disagreement turns on two judgement calls. Was the quality of representation at the stage of the first trial so inadequate as to cast doubt on whether Afzal Guru got a fair defence? This question is particularly germane when the death penalty is being awarded. And second, was the death sentence the right punishment for the crime? Raising these questions should not be out of bounds. Those campaigning on Afzal Guru’s behalf are not enemies of democracy. On the contrary, they are strengthening it. If anything, India is more likely to be strengthened, not by the hangman’s noose, but the candour and quality of its public discussion. Civil society can sometimes be too presumptuous in attributing bias to the state; equally it has to be said that the state is sometimes too quick to dismiss those who might think it has made a mistake. Let us at least grant some good faith disagreement in judgment.
This is not a question of being evasively even-handed between the state and its critics. For what it’s worth, this column has consistently argued against the death penalty. Every hanging is potentially a dark day for justice. It has also pointed out that even the courts make mistakes. In this instance, though, at least from the outside, there does not seem to be damning evidence of bad faith in the judicial process itself. The courts took a call, with all the attendant imperfections that are associated with the process. And we have to give that call some presumptive authority; and the state has to act upon it.
But there is a question about the narrative surrounding the execution. There is a good reason for granting the executive some discretion over the administering of the death penalty. It would be a mistake to take away that discretion. This discretion gives more opportunity to wrestle with any residual doubts the executive might have in death penalty cases; they are in a special class. It is rightly premised on the idea that executions can be political acts, not in a narrow partisan sense, but in the sense that larger political issues affecting the nation can be taken into account. The question is not one of discretion, but whether it can be exercised credibly and fairly. And here is where the state fails. It has failed to project its own credibility for several reasons.
The biggest threat to the credibility of the Indian state is loose-talking politicians and officials. Justice must not just be done; in a state that cares for legitimacy it must be seen to be done. We can only speculate on the immediate political logic that drove the timing of the decision. But, politics apart, the executive does have a structural crisis of credibility: its own conduct makes it untrustworthy. One day Digvijaya Singh is casting doubt on the integrity of the state and castigating it for false prosecutions. The next day he is evoking the same state to shore up the Congress’s credentials on the war on terror. Sushilkumar Shinde, one day, makes grave accusations of the RSS and the BJP being associated with terror and then fails to follow through on the logic of his own argument; the next day, he is trying to project a state above politics. The irony of the Congress, in public, trying to shore up its credentials on the war on terror, while Narendra Modi goes on about growth, is not being lost. It is lending credence to the suspicion that the Congress, perhaps even more than the BJP, has an investment in keeping communalism alive as a political issue. The BJP, for its part, will never learn the lesson that a credible justice system requires a certain matter-of-factness in civil society; not a breast-beating call for death. When you look at the conduct of this lot, it has been hard not to harbour doubts about the kind of considerations that move their decisions. This is a real political problem. They demand from citizens a presumptive authority in the state. But they have done precious little to make it credible. This crisis is only going to get exacerbated.
It has also been exacerbated by the fact that the absence of any political leadership has made articulating the so-called political conscience of the nation difficult. It is now a free-for-all, where every politician speaks without any sense of responsibility. Words alone do not matter, but discourse from politicians that does not do justice to the moral complexity of the matter undermines trust.
The Indian state has, again unwittingly, exposed its deep fragility. It had to take precautions in Jammu and Kashmir against violence. But how long can the Indian state continue on the presumption of distrust against ordinary Kashmiris? In the guise of saving them, the Centre wastes no opportunity to underscore its essential suspicion of Kashmir: it isolates it, cuts it off from elementary connections of modern life like internet and cable television, puts virtually the whole state under curfew. This is not the sign of a state tough on the war on terror. It is the sign of a state too frightened of its own people, too easily ready to sequester them. Both the BJP and the Congress will serve India better if, the next time they want to appear tough on the war on terror, they measure themselves by their ability to bring Kashmir into the fold of normal life. We may have hanged Afzal Guru. But the process of restoring the larger credibility of the state has barely begun.
The writer is president, Centre for Policy Research, Delhi
Perhaps 15-20 years ago Afzal Guru"s hanging would have been a brief front page new item followed by Editorials but now the subject has become major issue for all to give their opinions with TV media discussions reaching large section of people . The result is undue sympathy for the the person involved in attack against the country !Perhaps SC judgement in full required to be published to counter such mixed opinion ! Those human Rights champions simply forget the fact that those 12 people who died in the attack too did not meet their families at the time of their death every hard core criminal shall have someone to show sympathy and no surprise that KASAB'and GURU too have sympathy of several people in our country . Fight against terrorism continue to be weak as long as such voices and opinions gets unwarranted publicity
There has been a large hue and cry throughout the country eversince the news of the execution of Afzal Guru came out. Reading this newspaper it's clear that there are some serious flawsin the way the trial has been carried out. But it doesn't mean that the accused is genuine or that he never deserved capital punishment. What makes one think seriusly after this secret execution on the saturday morning is the viability of permitting "hanging to death"cases in a democratic set up like ours, where death penality is seriously viewed or reviewed depending upon the nature of crime committed by any criminal who is on trial.Anyhow, Afzal gone now and May the law makers atleast make sure hereafter that the accused must be given ample chance to prove his stand.If they fail to withold the major principle of justice to those who have an actual claim for it,needless to say that justice is slowly drifting away,only to lose it's entire kingdom . Will the law makers look into it atleast now?
An astute observer would see that zero credibility of the Executive has become the norm in the last 2 decades. Leave alone administering death penalty, the Executive finds itself unable to take routine decisions like raising diesel prices, arresting hatemongers, or even mandating environmental norms. This is the other side of the coin of Judicial activism on a scale that would be incongruous in any constitutional democracy. It is India's biggest crisis!
How can any state which believes in Human rights and decency of behaviour deny a meeting between a convict and his near and dear ones. why cant the parents of Afzal Guru have a right to bury their dead son according to their wishes. If a state or rather those governing us today are afraid of Law and order repercussions , they have no business to govern us anymore. India today stands with its head in shame in front of the international community . Gopal
PBM writes "It is lending credence to the suspicion that the Congress, perhaps even more than the BJP, has an investment in keeping communalism alive as a political issue." Well, longtime observers of Indian politics like myself have never had any doubts in this regard.
No1. Why was Afzal Guru kept hanging for so long ? No2. Why are other Convicts given the Gallows ? No3. Why are other Criminals not sentensed in due time, the cases continue for decades ? No4. Why do we have 2 parallel tracks of Justice ? One is for the INC / UPA men, one for the rest. No5. A lot of stink was raised by RADIA disclosures 2G Media breakout, why were the courts silent ? No6. The Justice Department often gets the Whiff of SCAMS, well in time, shoul'nt we have a Strong Judicial Mechanism to prevent the Losses to the National Treasury ? No7. The Politicians have become OMNI- POTENT, shouldn't we have some BRIDLE to restrain them ?
The columnist makes a valid point that in some cases, awarding the death penalty is a political decision, not in a partisan sense but in a larger, national cause. Perhaps the future of peaceful resolution in Kashmir may have been better served by a different decision being taken. Time will tell.