Death Penalty and Mohammad
 Afzal Guroo

There were fireworks and dancing in the streets when Ajmal Kasab was hanged. It is unlikely that the damage done in Mumbai in November 2008 was undone by this noise and boisterousness, and there is no reason to believe that the man’s execution will keep others from doing what he did; but the event, like a victory in a cricket match or a wedding in the family of the local zamindar, whether or not a legislator also, had to be celebrated. Importantly, the flag of National Security had been raised high even as it could be claimed that the attack had been avenged.
If reports are to be believed, the celebrants were mainly of the Hindu Right. The same hyper-patriotic and blood-thirsty people have been calling for the neck of Afzal Guroo, sentenced to death in the Parliament attack case. The media were notably active and effective in whipping up passions against both Kasab and Afzal, and they conducted their own trials and sentencing.

A criticism of the death sentence awarded to Afzal, which is said to have made the judgment flawed, is that “the circumstances of the accused were not considered†, such consideration being a requirement if one is to go by the judgment of the Supreme Court in Bachan Singh versus State of Punjab (1980). Only the “aggravating features of the crime†were kept in mind. (The words in quotes are from The Hindu newspaper of December 17, 2012.)

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Perhaps the most telling part of the Supreme Court judgment on Afzal was this: “The incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of the society will be satisfied if the capital punishment is awarded to the offender.†To me this sounds not like balanced, judicial language but like the purple prose of a hack who swallowed and then dutifully regurgitated the police line.

What does the person who wrote this judgment understand the word “conscience†to mean? The first definition in the Merriam-Webster dictionary on-line is “the sense or consciousness of the moral goodness or blameworthiness of one’s own conduct, intentions, or character together with a feeling of obligation to do right or be good.†That is to say, my conscience prevents me from doing what is wrong and pushes me to do what is right. My conscience does not come into the picture when I consider the acts of other people: their own consciences are involved there. However, to round this off in an absurd way, my conscience certainly can tell me that it is right and necessary for me to kill people who do things that I consider bad.
Thus we are left with the inescapable conclusion that the Supreme Court pronounced the death sentence on Afzal because it felt compelled to give effect to what Indian society as a whole was driven by its conscience to consider the right action. We may express the call of the collective conscience in its full absurdity thus: “Afzal is an evil man. We must hang him so that we may be assured of heaven.â€

The “heavy casualties†in the judgment must refer to the deaths of all five attackers and seven others, of whom five were policemen, and the injuries sustained by 18 people. I leave it to the reader to decide if seven dead and 18 injured can be called “heavy casualties†, given that the attackers were armed with automatic weapons every bullet from which can kill. My guess is that a soldier would call this a pitifully ineffective use of fire-power.

Then again, can we describe as “an attack on Parliament†the action of a group of men who jump out of their vehicle and begin immediately to fire indiscriminately, not taking the time to shoot in a way that would cause the most damage? I suggest, instead, “shooting on the grounds of Parliament†.

“The incident ... has shaken the entire nation†suggests that the Supreme Court followed the press and watched television, as no remotely scientific survey is known to have been conducted. The same media which reported the mental state of the nation have been held by many to have done a great deal to put public opinion into the shape that the security forces wanted. In the circumstances it should not surprise us if the reporting was biased, designed to feed into the larger plan.

Thus the death sentence was awarded to Afzal not by following strictly the “rarest of rare†line but by twisting the idea of conscience and accepting uncritically the suggestion that the nation was outraged and wanted the man to be hanged. The PUDR has spoken, in connection with the earlier High Court decision on Afzal, of “a judiciary trying to balance justice and populist sentiment†.

Let me end this piece as I began it, with fireworks and dancing and the distribution of laddus. The death toll in the Mumbai attacks of November 2008 was 164. It has been estimated that in Gujarat in 2002, over two thousand Muslims lost their lives, among them women and girls who were raped before being killed. In Gujarat much property was also destroyed, depriving Muslims of their homes and of their means of livelihood. Neither did the Hindu Right then call for the death penalty for themselves—for they alone were responsible for the bestiality—nor did they celebrate recently the sentencing of Maya Kodnani and Babu Bajrangi with firecrackers and dancing. Kodnani and Bajrangi are not Pakistani like Ajmal Kasab, after all, they are the leading lights of the Hindu Rajya known as Gujarat; their cell phone records showed that they were constantly in touch with the office of one N. Damodardas Modi while the State was in flames of their creation. Afzal Guroo, being a Muslim, is for these people virtually a passport-holding Pakistani: and of course they want to dance in the streets again and distribute laddus in celebration of righteous vindictiveness.

Note: I had been planning to write on these matters for some weeks and finally got down to it after reading V. Venkatesan’s article on the front page of The Hindu of December 17, 2012 and a subsequent conversation with N.D. Pancholi, the lawyer.

The author is a writer, editor and photographer.