A Delhi High Court bench headed by Justice Pratibha Rani gave bail to Kanhaiya Kumar, the president of Jawaharlal Nehru University Students’ Union, on March 2 quoting a Bollywood song. The bail order began with a stanza from a song from the film Upkar, whose last two lines were:
Mere desh kii dharti sonaa ugle
Ugle hiire moti mere desh ki dharti.
It would have been entirely appropriate if the judge was alluding to Kumar as a national treasure in that reference. He is, no doubt, an Indian who every citizen should be proud of. After his release following 23 days in jail, he gave a rousing speech at JNU which reflected rare maturity, humour and a deep commitment to freeing India of poverty, caste and corruption.
As one reporter proclaimed: “We have just witnessed the birth of a national leader.”
But the judge was not referring to Kumar or JNU as national treasures. She was asserting her own patriotism. In her order, Justice Rani lectured the students and faculty of JNU on patriotism and reminded them that the freedom they enjoy is because “our borders are guarded by our armed and para military forces. Our forces are protecting our frontiers in the most difficult terrain in the world ie Siachen Glacier or raan of Kutch”.
She said that those who were “shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chests honouring their martyrdom, may not be able to withstand those conditions for an hour even”.
As it happens, there is so far no evidence to show that Kumar ever shouted pro-Afzal Guru or pro-Maqbool Bhatt slogans at the February 9 event at JNU, which was organised to protest the hanging of 2001 Parliament attack convict Afzal Guru.
So, how do judges make judgements about people, whether it is Kumar, a student leader, Vikram Singh Chauhan, a bully lawyer, or Mohammad Afzal Guru, the man convicted and hanged for his part in the Parliament attacks. It is a question at the very heart of jurisprudence: how does the law judge human beings?
A militant or a martyr?
Every person is equal before the law: the Constitution of India gives the right of equality to every person, be it a citizen or non-citizen.
However, despite this right, the court has to decide individual responsibility and guilt based on the unique facts and circumstances of each case. This isn’t so simple. Fixing individual responsibility and guilt is a complex question which has perplexed philosophers for generations. Who exactly is the person who is to be judged?
James Boyd White, an American law professor and philosopher, argued in his book Legal Imagination that it is very difficult, indeed impossible, “to talk about a real person in a way that does justice to what he is, to his difference from oneself, even when one is free to use any literary resource one can devise or invent”.
Who then was Afzal Guru? A militant, a terrorist, a surrendered militant, a martyr, or a victim of history?
Afzal Guru himself admitted to helping one of the Parliament attack suicide bombers obtain a car and rent a room. But if that is true, why do so many people in Kashmir remember him as a person who was wronged by the Indian state and not as a part of the 2001 attack conspiracy? Why is he regarded as a martyr by them and the Peoples Democratic Party? Do they condone the attack? They certainly do not.
Even the Hurriyat Conference, an alliance of Kashmiri organisations, didn’t publically support the attack. It issued no statement and raised no slogan in support of the attack or the people accused of particpating in the conspiracy. In fact, at the time Afzal Guru was arrested, Kashmiris looked upon him as a traitor. He was a surrendered militant and Kashmiri militants see all surrendered militants as traitors.
The people in Kashmir started calling Afzal Guru a martyr only after he was hanged secretly by the Indian government without giving his family an opportunity to meet him a final time. They felt he had been denied justice. He became a martyr not because he was a part of the Parliament attack conspiracy but because he admitted to his part in it and was denied justice anyway. Why do I say denied justice?
Afzal Guru admitted that he went to Pakistan for three months’ arms training but surrendered soon after his return. He became a surrendered militant, knowing well the stigma he would face for giving himself up. Afzal Guru was willing to do it anyway because he had got disillusioned with Pakistan. He realised Pakistan was only using Kashmiris for its own ends.
From the time Afzal surrendered to the time he took part in the conspiracy to attack the Parliament, there is no evidence that he ever participated in any illegal activity. The record shows he was desperately trying to build a new life for himself. He went to Delhi to finish his graduation (His dream of becoming a doctor was cut short by the insurgency in the 1990s). In Kashmir and in Delhi, he supported himself by giving tutorials.
He got married to a vivacious Kashmiri woman, Tabassum, and they had a son. He started a business and looked after his small family and widowed mother. All he wanted was a normal life. But he was not allowed to. The notorious Special Operations Group, an anti-insurgency force of the Jammu and Kashmir police, wanted him to become an informer and that he refused to be. The SOG tortured him so brutally that he had to be hospitalised for a month. The man who tortured him admitted to his crime on national television.
According to Afzal Guru, it was someone in the intelligence agencies who asked him to escort Mohammad to Delhi and help him find a rented room and a car. Mohammad, it turned out, was one of the suicide bombers who was responsible for the actual attack on the Parliament and for killing Indian security forces.
In the light of the controversies over Ishrat Jahan, it is not entirely unthinkable that Afzal Guru, a surrendered militant, was being used by the intelligence agencies. In the West, there have been many cases in which intel agencies used former militants and even allowed them to commit acts of terror. In this case, the intelligence agencies may have been following some intel and could not prevent the attack.
These facts need investigation but as of now there is no proof to refute Afzal Guru’s claim. No evidence has been provided to counter his allegations. He was not given an opportunity to prove his case.
However, there are three facts which are incontrovertible:
First, Afzal Guru was denied a lawyer at the trial. This was the main argument in Indira Jaisingh’s curative petition. She said the legal aid services authority doesn’t provide adequate fee scale. This, in her opinion, results in two sets of standards of access to justice, one for the rich and the other for the poor. The Supreme Court did not adequately address this defect in the trial of Afzal Guru, although a senior counsel brought it to its attention.
Second, although Afzal Guru was involved in the conspiracy to attack the Parliament, he should not have got the death penalty. The court is expected to look at the circumstances and specific role played by each person in a conspiracy while handing down the sentence. The charge-sheet named three persons as the masterminds of the attack: Maulana Azhar, Ghazi Baba and Tariq Ahmed. These three persons were declared absconders and not brought to trial. If they had been tried and found guilty of masterminding the attack, they could have legitimately been given death sentence.
The five suicide bombers who actually attacked the Indian Parliament and killed the Indian security forces were killed. If they had been tried and found guilty, they too could have legitimately been awarded death sentence.
The four persons who were arrested were not the masterminds, they did not actually kill anyone, and two of them were eventually acquitted by the Supreme Court. One was released after 10 years. Only Afzal was given death sentence.
Third, what angered the Kashmiri people was the reasoning of the Supreme Court. It held: “The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.”
The law and the media have judged Afzal Guru as a terrorist. In defiance of this judgement, the people of Kashmir have called him a martyr.
The law does not take facts of history as evidence. Historical injustices are not mitigating circumstances for sentencing a person. How far is a person responsible for the historical circumstances which compelled him or her to take certain decisions, to act in certain ways? And how can the law balance individual responsibility with social, political and economic circumstance?
GK Chesterton, a theologian, poet and philosopher, wrote:
“Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. If it wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or a solar system discovered, or any trifle of that kind, it uses its specialists. But when it wishes anything done that is really serious, it collects twelve of the ordinary men standing about. The same thing was done, if I remember right, by the Founder of Christianity.”
In India we do not have a jury system. So people will have to make their own judgements. Many Indian citizens have adjudged Afzal Guru a terrorist, while their fellow citizens in Kashmir honour him as a martyr. The meeting on February 9 at JNU, which was organised by both Kashmiris and other Indian students, was an important bridge between these two understandings. Such bridges can be built most effectively by the youth. Ultimately, our borders have to be defended not against our enemies but against disaffection and alienation within our country.
To call these idealist youth engaged in building bridges as anti-national is not only legally untenable but politically dangerous for our country.