Afzal Guru - An execution most foul

T. R. Andhyarujina in The Hindu

  

In carrying out Afzal Guru’s death sentence, the government deliberately ignored the view of the Supreme Court and courts across the world that hanging a person after holding him in custody for years is inhuman 

The execution of Afzal Guru on February 9, 2013 was an inhumane act by the Government of India. Afzal Guru was hanged seven years after the Supreme Court’s pronouncement of the death sentence on him on August 4, 2005 and over six years after his clemency petition to the President of India on November 8, 2006. During this period, he and his family remained in agonising suspense over his fate every day — a situation that is condemned by all civilised countries and our Supreme Court. The rejection of his petition by the President after over six years on February 3, 2013, was kept secret and deliberately not communicated to his family, lest it became the subject of judicial consideration as has been done in other cases of delayed execution. Within a few days of the rejection of his mercy petition, the execution was carried out in secrecy on February 9, 2013 without informing his family, and his body was buried in equal secrecy in a grave inside Tihar Jail, New Delhi. 

Six years

A petition made to the President for pardon, reprieve or remission of punishment under Article 72 of the Constitution is a right of a convict and until the petition is rejected, the government cannot carry out the sentence. In disposing of the petition under Article 72, the President does not act at his discretion but on the aid and advice of the government. This was held by the Supreme Court in Kehar Singh’s case in 1989. The crucial question was whether the execution could be carried out after a prolonged delay of over six years from the day Afzal Guru made his petition to the President. 

The disposal of Afzal Guru’s petition became a political matter, with the BJP’s unseemly demand for his execution and its making it an issue in the ensuing elections. For its own political consideration, the government did not decide the petition made to the President. In fact, between 2006 and 2008, the then Home Minister deliberately instructed the Government of Delhi to delay responding to the Afzal Guru file sent to it. In 2008, Afzal Guru made a statement that revealed his mental distress. He said in an interview, “I really wish L.K. Advani becomes India’s next PM as he is the only one who can take a decision and hang me. At least my pain and daily suffering will ease then.” 

When terrorist Ajmal Kasab was executed on November 21, 2012, immediately following the Supreme Court’s verdict on him, the Opposition again renewed its demand for Afzal Guru’s execution. Steps were then taken by the government to prevent the opposition from exploiting the situation. Kasab’s execution carried out in secrecy became the model for the execution of Afzal Guru. On November 15, 2012, President Pranab Mukherjee sent Afzal Guru’s file back to the Home Ministry for a fresh consideration of the mercy petition. On January 23, 2013, the Home Ministry recommended its rejection and on February 3, 2013, the President formally rejected the petition. The President’s rejection was then implemented by the Home Minister on February 4, 2013 and five days later in the early morning on February 9, 2013, Afzal Guru was hanged. 

In executing Afzal Guru after a prolonged period in which he and his family suffered the agony of suspense, the government flouted a well-settled law laid down by the Supreme Court in several cases. In Edigma Anama vs. State of A.P. in 1974, Justice Krishna Iyer spoke of the “brooding horror of haunting the prisoner in the condemned cell for years.” Justice Chinnappa Reddy in T.V. Vatheeswaran vs. State of Tamil Nadu in 1983 said that a prolonged delay in the execution of a sentence of death had a dehumanising effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the Fundamental Right under Article 21 of the Constitution. He quoted the Privy Council’s observation in a case of inordinate delay in execution: “The anguish of alternating hope and despair, the agony of uncertainty and the consequences of such suffering on the mental, emotional and physical integrity and health of the individual has to be seen.”

 

Trauma of convict and family

In 1983, in Sher Singh vs. State of Punjab, the Court repeated the same observations, and in the larger Constitutional Bench in Triveniben vs. State of Gujarat in 1989 to settle the law, the Supreme Court again reiterated that a prolonged delay in execution would be unjust, unfair and unreasonable. The Court held that in the disposal of mercy petitions it has been universally recognised that the condemned person suffers a degree of mental torture even though there is no physical mistreatment. The Court held that if there was an inordinate delay in execution, the condemned prisoner would be entitled to move the Court to examine whether it was just and fair to allow the sentence of death to be executed. The disclosure of the rejection of the mercy petition was, therefore, mandatory. In the case of Jagdish vs. State of Madhya Pradesh in 2012, the Supreme Court highlighted not only the agony of the convict by inordinate delay of execution but also the agony and trauma of his close relatives.

In 1994, the Privy Council adopted the observations of the Indian Supreme Court and stated in a moving part of the judgment that “there is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time … To execute these men now after holding them in custody for so many years would be inhuman punishment.” The European Court on Human Rights in 1989 and the Canadian Supreme Court has also has taken a similar view. In executing Afzal Guru, the government deliberately ignored the views of our Supreme Court and other Courts in other jurisdictions.

Apart from the torment and agony suffered by the death row convict, it has been universally recognised that the agony is suffered also by his near and dear ones in the same manner by the delay. A leading textbook on death penalty states that “the trauma for families is specially evident when the date of the execution draws near. In recognition of this, it appears to be the common practice in most retentionist countries to allow relatives to visit the condemned person prior to execution, to inform them of the date of the execution, and to deliver them the body for burial.”

In Afzal Guru’s case, his family members were not informed of his imminent execution and were unable to meet him one last time before his execution. The government’s claim that it informed them by a speed post letter dispatched on February 8, 2013 is meaningless. The letter was delivered to the family in Kashmir two days after his execution!

In March-April 2012, the Supreme Court heard petitions by two death convicts — Devender Pal Singh Bhullar and Narender Nath Das — on the validity of carrying out executions after mercy petitions were delayed for eight to 11 years. The Court considered the cases of other death row convicts also whose executions were prolonged and directed the Government of India to give details and files relating to the convicts. The government then gave the details of the death row convicts whose mercy petitions were pending with the President of India.

 

Legality of prolonged delay

One of the pending cases was that of Afzal Guru. The Court appointed me as amicus curiae to consider the larger question of the execution of convicts after inordinate delay. In the course of my submissions, I referred in particular to the facts of the Afzal Guru case. The hearing concluded on April 19, 2012, and judgment was reserved in the case. The government was fully aware that the legality of prolonged delay in the execution of convicts was pending consideration by the Supreme Court. It was incumbent upon the government to await the authoritative pronouncement of the Supreme Court on the pending petitions but the government carried out the execution of Afzal Guru on 9 February, 2013.

Overall, Afzal Guru’s execution will remain the most callous death sentence carried out by the government of India.

 

(The writer is a Senior Advocate of the Supreme Court and former Solicitor General of India)

A Time For National Reflection

The secretive and stealthy hanging of Ajmal Kasab is a moment in our nation’s history when we need to pause and ponder, and reflect on the values that we, as a nation, should uphold, particularly relating to crime and punishment, justice and equity

PEOPLES UNION FOR CIVIL LIBERTIES (PUCL)

The secretive and stealthy hanging of Ajmal Kasab in Pune’s Yerwada Prison on  21^stNovember, 2012, brings to an end the legal process involved in trying Kasab for the brutal assault by trained terrorists from across the border on Mumbai, the commercial capital of India which left 166 persons dead.

The Mumbai carnage of November 2008, more popularly abbreviated to a single term `26/11,’ constitutes one of the most heinous and deliberate attempts in recent years to cause mass mayhem and terror in India. Kasab was the only member of the terrorist team sent from Pakistan apprehended alive; he was caught on film diabolically using his modern automatic weapon in a cold blooded fashion, killing numerous people. The hanging, and the trial and legal proceedings which preceded it,  admittedly  complied with existing laws which permit death penalty, and cannot be faulted as such.  While it may be argued, as many do  that the hanging will help in an `emotional closure’ to the families of victims of 26/11, there are others who point out that other key issues still remain to be addressed.  Families of victims in specific, as also other concerned citizens, have pointed out that Kasab was only a foot soldier and not the mastermind, who still remain at large.

We cannot also lose sight of the fact the  reality that the backdrop of the 26/11 incidents is also the festering and unresolved internal conflict inside Kashmir, which provides an easy emotive tool for demagogues to indoctrinate and turn youth to become cold blooded `jihadi’ killers. To them, the execution will not be a deterrence.

The extensive legal process  ending with the hanging of Kasab is pointed out as a triumph of the of `rule of law process’ in India. In the same breath this is also contrasted to the lack of such situation in neighbouring Pakistan.  This discourse is however very worrisome; it borders on `triumphalism’ on the one hand, and on the other, it amounts to an attempt to `avenge’ or seek `vengeance’, and `eye for an eye and tooth for a tooth’ mentality, which worldview has been rejected as dangerous amongst a majority of 110 countries worldwide which have prohibited death penalty in their countries.

Such triumphalist discourse is also worrying for it hides behind emotive terminology very harsh truths of failure and miscarriage of justice in other incidents of mass killings that have occurred in India. The `cry for justice’ still remains a silent pouring of helpless anger in the hearts and souls of thousands of families of victims  in incidents like planned and cold blooded slaughter of over 3000 Sikhs during the anti-Sikh riots of 1984, the massacre of hundreds of Muslims in the wake of the Babri Masjid demolition in 1992-93 (which ironically occurred in Mumbai also), the 2002 post-Godhra anti-Muslim carnage in Gujarat which saw over 2,000 Muslims killed and thousands more rendered homeless and more recently in Kokrajhar in Assam. A stark reality is the cynical manipulation and subversion of police investigation by ruling political parties and the executive  to help masterminds and perpetrators escape the clutches of the law.

In the surcharged emotional atmosphere in the wake of Kasab’s hanging,  even raising questions about the usefulness of hanging Kasab is considered to be `traitorous’, unpatriotic and anti-national.  We in the PUCL nevertheless feel that this is a moment in our nation’s history when we need to pause and ponder, and reflect on the values that we, as a nation, should uphold, particularly relating to crime and punishment, justice and equity. We need to be conscious of the fact that a nation consumed by outrage and filled with a sense of retribution easily confuses “punishment and revenge, justice and vendetta”. We, as a nation, need to begin a dispassionate public debate on the death penalty without judgmental, indignant, righteous or moralist overtones.

PUCL has always taken a principled stand against the death sentence as being anti-thetical to the land of ahimsa and non-violence, as constituting an arbitrary, capricious and unreliable punishment and that at the end of the day, the type of sentence that will be awarded depends very much on many factors, apart from the case itself. PUCL and Amnesty International have published a major  study of the entire body of judgments of the Supreme Court of India on death penalty between 1950-2008 which unambiguously shows that there is so much arbitrariness in the application of `rarest of rare’ doctrine in death penalty cases that in the ultimate analysis, death sentence constitutes a `lethal lottery’.

It may not be out of context to highlight that just two days before Kasab was hanged, on 19^thNovember, 2012, the Supreme Court of India pointed out to the fact that in practice, the application of `rarest of rare cases’ doctrine to award death penalty was seriously arbitrary warranting a rethink of the death penalty in India.

It is also well recognised now that there can never ever be a guarantee against legal mistakes and improper application of legal principles while awarding death sentences. Very importantly, the Supreme Court of India in the case of `Santosh Kr. Bariar v. State of Maharashtra’, (2009) has explicitly stated that 6 previous judgments of the Supreme Court between 1996 to 2009 in which death sentences were confirmed on 13 people, were found to be `per incuriam’ meaning thereby, were rendered in ignorance of law. The Supreme court held that the reasoning for confirming death sentences in theses cases conflicted with the 5 judge constitutional bench decision in Bachan Singh v. State of Punjab (1980), which upheld the constitutionality of the death sentence in India and laid down the guidelines to be followed before awarding death sentence by any court in India.

It should be pointed out that of the 13 convicts awarded death sentence based on this per incuriam reasoning, 2 persons, Ravji @ Ramchandra was hanged on 4.5.1996 and Surja Ram in 5.4.1997. The fate of the others is pending decision on their mercy petitions. In the meantime a group of 7 – 8 former High Court judges have written to the President of India pointing out to the legal infirmity in the award of death sentences to these convicts and seeking rectification of judicial mistake by commuting their death sentences to life imprisonment. A very troubling question remains: how do we render justice to men who were hanged based on a wrong application of the law?

It is for such reasons, amongst others, that PUCL has long argued that it is extremely unsafe and uncivilised to retain death penalty in our statutes.

It will be useful to refer to the stand on death penalty taken by 3 of India’s foremost leaders of the independence struggle.

Mahatma Gandhi said,

“I do regard death sentence as contrary to ahimsa. Only he takes it who gives it. All punishment is repugnant to ahimsa. Under a State governed according to the principles of ahimsa, therefore, a murderer would be sent to a penitentiary and there be given a chance of reforming himself. All crime is a form of disease and should be treated as such”.

Speaking before the Constituent Assembly of India on 3^rd June, 1949, the architect of India’s constitution, Dr. Ambedkar, pointed out,

“… I would much rather support the abolition of death sentence itself. That I think is the proper course to follow, so that it will end this controversy. After all this country by and large believes in the principles of non-violence, It has been its ancient tradition, and although people may not be following in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as dar as they possibly can and I think that having regard to this fact, the proper thing for this county to do is to abolish the death sentence altogether”.

Jayaprakash Narayan wrote more poignantly that,

“To my mind, it is ultimately a question for the respect for life and human approach to those who commit grievous hurt to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case … They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man’s dignity and make society more humane”. (emphasis ours).

PUCL calls upon all Indians to use the present situation as a moment of national reflection, a period of serious dialogue and discussion on the values and ethics which we as a nation of Buddha and Ashoka, who epitomised humane governance, dharma and ahimsa, should accept and follow. The best tribute we can pay to the 166 persons who lost their lives due to the 26/11 Mumbai carnage is to rebuild the nation in a way that equity and justice, dharma and ahimsa prevails; in which there is no soil for discrimination and prejudice, and in which all Indians irrespective of caste, community, creed, gender or any other diversity, can live peacefully and with dignity.

We firmly believe that mercy and compassion are key values of a humane society, which are also recognised in the Indian Constitution. We also hold that abolishing death penalty is not a sign of weakness. Rather it is a stand which arises from a sense of moral authority. It is when law in tempered with mercy that true justice is done. Bereft of mercy our society would be impoverished and inhuman; mercy is quintessentially a human quality, not found elsewhere in the natural world. Excluding a fellow human being from the entitlement to mercy will make our society more blood thirsty, unforgiving and violent. We owe a duty to leave a better and less vengeful world for our children by curbing our instinct for retribution. That way we become a more humane and compassionate society. Recalling Rabindranath Tagore’s vision in the `Gitanjali’, let us re-make India into a `haven of peace’ in which future generations of Indians will rejoice and flourish.

Sd/-

Prof. Prabhakar Sinha, National President, PUCL
Dr. V. Suresh, National General Secretary (Elect), PUCL

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Also read The hangman's justice

The Tourist Isn’t An Endangered Animal

DHRITIMAN MUKHERJEE

Exclusion of budget tourists can hit support for conservation

 

Tourism can increase its natural capital by converting farms to wildlife viewing land, with shared profits

K. ULLAS KARANTH  in Outlook india

The media splash—exemplified by a hyper-ventilating Guardian report following the Supreme Court’s July 2012 interim order suspending tourism in some tiger reserves—has convinced the public that all wildlife tourism activity in India stands permanently abolished. Following the August 22 ruling on a review petition by the SC, in which it extended its ban on tourism in the ‘core areas’ of tiger reserves, people might think such a shutdown portends a disastrous collapse of public support to tiger conservation. These are exaggerations arising out of a flawed reading.

Wildlife tourism has been temporarily halted only in tiger reserves, that too only in states that have not notified ‘buffer zones’ mandated by law. Tourism is going on unhindered at all other wildlife reserves, including tiger reserves where buffer zones have been notified. The intent of the court’s order appears to be to compel remaining states to create buffers around already notified core areas or ‘critical tiger habitats’, with the suspension of tourism as a threat. The issue, as it has been framed by the court, will hopefully renew focus on the flawed boundaries of some of these critical tiger habitats, for both scientific and practical reasons.

Broadly, there are two kinds of wildlife tourism being practised in the country. The first is ‘budget tourism’, affordable to the non-affluent. My career as a naturalist was nurtured decades ago as one such tourist who paid 16 rupees for a van ride to watch wildlife rebound from the brink in Nagarahole, Karnataka. Budget wildlife tourism emerged in 1970s, when wildlife began to recover after a pioneer generation of foresters implemented Indira Gandhi’s tough new laws.

The high-end version of tiger tourism, kicking up so much dust now, came later when wildlife got habituated to tourists and could be easily watched. It typically features luxury accommodation and fine food (often with swimming pools, saunas, therapeutic massage thrown in). The ‘boutique tourism’ we see at reserves like Bandhavgarh, Kanha and Ranthambhore can be enjoyed only by the well-off.

The rise of boutique tourism is a consequence of India’s economic growth, which generated large disposable incomes that could be tapped. Its concern is profit, not conservation education. This is not a crime, as some appear to believe—but nor is it a great virtue. Although high-end tourism generates some local jobs and benefits, unlike in Africa these are not at all significant when scaled to the size of local economies, let alone state or national ones. Wildlife reserves cannot be India’s ‘engines of economic growth’. Their primary value is for educating the public about our threatened wildlife, generating support and enabling conservation action.

High-end tourism necessarily targets spectacular animals like tigers, lions, rhinos and elephants that attract top dollars. It has spread rapidly across the country, with even the public sector joining in. As a result, in most good wildlife reserves, the prices charged for entry, vehicle rides and accommodation have all skyrocketed beyond the reach of average citizens. However, because the size of these reserves or their carrying capacity has not expanded, richer tourists are steadily squeezing out budget tourists.

This sad consequence of spreading high-end tourism has gone unnoticed in the present debate. Exclusion of the budget tourists is far more likely to undermine long-term public support for wildlife conservation in India than the court’s suspension of tourism in a few high-profile tiger reserves. To ignore this reality and to portray all wildlife tourism as one homogeneous, benevolent entity is highly misleading.

Publicly owned wildlife reserves must be accessible to budget tourists. If they are excluded, it will undermine long-term public support for wildlife conservation here.

The arguments that the tourism industry’s watchful eyes are necessary to protect wildlife and its ‘ban’ will lead to collapse of wildlife protection are also facetious. The high-end tourism boom, in fact, followed years after wildlife populations had rebounded: to claim that it recovered wildlife is to mistake the effect for the cause. What is particularly muddying this logical stream in the present debate is the fact that a handful of genuine conservationists are loudly pleading the industry’s case. However, in my view, they do not represent a reasonable sample of general industry behaviour or practices by any stretch of imagination.

On the other hand, it would also be wrong to portray ‘tiger tourism’ as the most important threat to wild tigers. It is not. Direct killing by criminal gangs, poaching of prey animals, livestock grazing, the collection of forest produce by locals, development of infrastructure such as mines and dams in ecologically sensitive areas, as well as the misapplication of the Forest Rights Act, pose much bigger threats. Ill-conceived and over-funded ‘habitat improvement’ practised by reserve managers is also emerging as a potent threat.

However, it cannot also be denied that increasing tourism pressure, ‘more of vehicles, riding elephants, fuel-wood consumption and water diversion, as well as broader scale habitat fragmentation’ are of increasing concern. This is particularly true because much of the high-end tourism pressure is targeted at a few major reserves that cover less than 1/1000th of our land.

Clearly, the present model of wildlife tourism is unsustainable in a country with over a billion people with an annual economic growth rate of 6-8 per cent. Drastic regulation is urgently needed and more sustainable tourism models must be built. Preferably, these should emerge from shared conservation concerns rather than mere government diktat or court orders. I urge that the promotion of the economic self-interest of farmers living in close proximity to wildlife should also be a key component of any new model of wildlife tourism.

If the economic force manifested as boutique wildlife tourism is to genuinely serve conservation, it must urgently reinvent itself. How can it do so?

Essentially the land-base for wildlife viewing must expand outward from our tiny nature reserves, creating additional wildlife habitat as economic growth and demand increase. Pragmatically, the only possibility for such expansion has to rely on private lands stretching outwards from our wildlife reserves in all directions. Therefore, instead of deploying its political clout to seek more concessions inside existing wildlife reserves, or even pleading for allotment of publicly owned lands outside, the high-end tourism industry would be wiser in partnering commercially with farmers around major reserves that shelter tigers, lions, rhinos or elephants that its clients will pay to watch.

Only by converting farms to land for wildlife viewing, by means of reasonable profit-sharing mechanisms, can this industry hope to increase its true ‘natural capital’—wildlife and wild lands. Unfortunately, the loss of this natural capital is now not even a part of the industry’s business models. Furthermore, such profit-sharing will undoubtedly lessen the hostility that locals feel towards wildlife reserves as playgrounds reserved for the rich. It will also reduce the industry’s crippling dependence on fickle government policies or unpredictable litigation for its very survival.

The success of the ‘wildlife habitat expansion model’ I propose will depend on the underlying economics being robust. It will not depend merely on pious conservation concerns but on pursuit of economic self-interest by both industry and farmers. It may not meet the gold standards of North Korean socialism, but I believe it can offer a pragmatic long-term solution framed within the overall model of development followed by every elected government for the past two decades.

What then of the ordinary budget tourists? It’s imperative that publicly owned wildlife reserves be accessible to them at reasonable costs, even as commercial tourism expands outwards in ever widening circles. What I have proposed is indeed closer to the South African model of wildlife tourism, which industry advocates now demand in India. That model includes well-run, properly zoned national parks like Kruger that benefit large numbers of less-affluent tourists. These are surrounded and buffered by an expanding network of private reserves catering to visitors with deeper pockets. In the process hundreds of square kilometres of marginal farmland, cattle ranches and Biltong (game meat) ranches have turned into additional well-managed wildlife tourism reserves. This case comes as a warning bell for India’s wildlife tourism industry: if it does not confront the economic issue of its own dwindling natural capital, soon it will have no place to go.

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(Karanth is director for Science-Asia, Wildlife Conservation Society)