A Reply to Afzal Guru’s Defense

Nandita Haksar in her article “Was Afzal Guru a martyr or a militant? JNU students were debating a question that law can’t” wrote against the hanging of Afzal Guru and justified the meeting at JNU protesting against the same.   It was tweeted by Ms Sagarika Ghose.

Ms Haksar commented: “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.”(emphasis mine)

I do not agree with Ms Haksar’s reasoning.

Firstly, while India does not have a Jury System it has Bench Trial which is as much a legal system as the former.

Secondly, notwithstanding the absence of Jury System judgments are rendered by Courts  and “Indians do not have to make their own judgments”.

Thirdly, Indians citizens did not adjudge Afzal Guru a terrorist the legal system did.

Fourthly, the meeting could build no bridge because it shut out the contrary point of view by taking a firm position that Guru’s execution was “judicial murder” and that too surreptitiously under the guise of “poetry reading“.

Fifthly, it is because the country has to be guarded against disaffection and alienation that dogmatic denunciation of the system and that too in a covert manner must be deprecated.

Strangely, Ms Haksar in an earlier part of her article had mentioned, “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.” (emphasis mine) One protests when one feels wronged. Whether slogans are shouted or not the organisation of the protest suggested an identity with the point of view with the more vocal of the protesters!

Guru, Haksar says, became a martyr because he was “hanged secretly by the Indian governmentbut as hanging follows a completed adjudication how can the hanging be “judicial murder?

And while Kanhaiya did mention Afzal Guru in the speech (reproduced in Indian Express) prior to his arrest, on his release he said Rohith not Afzal Guru is his icon! Even if we ignore Kumar’s fitfulness towards serious issues, if Kanhaiya (whom Haksar describes as a “national treasure“) has forsaken Afzal Guru, is Haksar’s espousing of Guru’s cause and that too riding on Kumar’s shoulders not utterly incongruous?

It is interesting what Nandita Haksar calls “incontrovertible facts” about the Afzal Guru case. She says, “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.”  (emphasis mine) The incontrovertible fact is Afzal Guru’s version which incidentally never mentioned who and in which intelligence agency told him to escort  Mohammad.

Ms Haksar goes on to say, “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.” Surmises and hunches thus become “incontrovertible facts!”

As far as denial of a lawyer in the Trial Court is concerned what is important to note is that he was not given death sentence by the Trial Court (where the denial of lawyer is alleged) but by the High Court (where he was duly represented) which was upheld by the Supreme Court (where he was duly represented too).

Haksar concedes that Afzal Guru “was involved in conspiracy to attack Parliament” but says “he should not have got the death penalty.” because Azhar, Baba and Ahmed absconded ignoring that in cases of conspiracy the liability is joint and the act of others is imputed to the conspirators and because Azhar, Baba and Ahmed deserved death penalty Guru could not be treated differently. The accused who was convicted for 10 years was not convicted under Section 121 (as was Guru) but under Section 123 (for which the maximum punishment is 10 years).

The Supreme Court judgment in Guru’s case runs into about 200 pages and has 339 paragraphs but only one line from the entire judgment is reproduced which says, “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.” This said Nandita Haksar angered the Kashmiri people. I do not know how all the Kashmiri people converged on this one line in the judgment and do not know the empirical basis for Haksar’s conviction that this line angered them. But Ms Haksar had earlier said, “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.” (emphasis mine) How then could the “Kashmiri people” react to the judgment which was many years earlier?? In any event the line reproduced was not the only reason given by the Supreme Court to justify dismissal of the appeal. The Court found that the conclusion reached by the High Court both with regard to “the applicability of Section 121 IPC (Waging, Attempting or Abetting War) and punishment is correct” and detailed reasons were given for the same. The judgment was not rendered by “random men” whom Haksar referred to in Chesterton’s quote and to whom she had objection but experts, specialists in the field of law.

Ms Haksar says, “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. Who is in the wrong then? If sentiment overrules the law, law would require continuous speculation and would vary with personal whims. And what is the basis to primacy of any one section’s whim (in this case the Kashmiri people imagined by Ms Haksar) and will such an exercise not affect the principles of stability, fidelity and rationality which alone guarantee fairness in law?

We are not concerned with what kind of person Guru was but what Guru did. Ms Haksar does not set out the “historical injustices” which she alleges qua Guru and the random references to different thinkers is actually so, random. And they do not fit with the rest of the content.

It is good to build bridges, as Ms Haksar says, but it is not correct to create divides because those who create divides will never be serious about building bridges. When one is more serious about divides than bridges, law will always be a hinderance. And the only way to justify such extra-legal behaviour is to say, as Ms Nadita Haksar has said, that what one does is what “law cant”!

RAHUL GANDHI at JNU -Some questions

“Dont let these bullies push you around. They are terrified of poor, weak Indian people getting a voice. Question them at every single step.” Thus spoke the Original Wise Man (Rahul Gandhi) at JNU.

I took the sage advice given by Rahul Gandhi. I am not “poor” or “weak” but I am an Indian and I feel a right to question is available to all. Rahul Gandhi being an original thinker will surely agree with this proposition.

Rahul Gandhi did not include himself in the category of “bullies” but the exclusion notwithstanding he can yet be questioned. Rahul, being wise, can have no objection.

And as the question can be raised at every single step I am definitely not late in questioning. Rahul Gandhi is surely man enough to accept it.

Using Rahul Gandhi repeatedly can be tedious and Original Wise Man though appropriate is too long so I will substitute both expressions with the pronoun “you” – an expression which will assume significance for different reasons later in this article.

You asked a question about “who anti-national people are” and answered yourself that they are the ones “suppressing the voice of JNU”. What according to you is the “voice of JNU”?  Is it of the students who eulogise Afzal Guru and pray for India’s disintegration or those who oppose this point of view? Why did you not address this question while dealing with a very pertinent issue of defining “anti-national people”?

You talked about the “real Indian people” but chose not to elaborate about who constitutes this class. Why did you fight shy of developing the concept? Were you afraid of un-personing those who do not share your point of view or are only those people “real Indians” whom you approve and certify. I feel Kanhaiya who is accused, among other things, of shouting anti-India slogans can justifiably  be tried for sedition under the Indian Penal Code. Does that take me out of the category of a “real Indian”?

You said that in “crushing you” they will make “you stronger”. Who is the “you” here and who are “they”? “You” is a pronoun and refers to the ones being addressed. Does it follow only those who listen to you and cheer you are the ones who should be empowered and made “stronger”? Was the free and enthusiastic crowd (the “you”) cheering you (without inverted commas) yelling approval to what you (not the other “you”) spoke a “crushed” people?  I will not cheer you for what you did in JNU but will roundly condemn you. I am part of “they”. Are you suggesting I am for that reason any less Indian?

You also said “they feel fear”.  It is obvious in your scheme of things I am “they”. But I feel no fear when you talk the way you do. I feel disgust. And I feel pain. And while I am not “crushed” – not because you have spared any effort but because my spirit is vigorous than your resolve – I will yet be strong to secure my country which for you is merely a slogan.

If anyone is “terrified” its not “they” (I mean me) but you (not the “you”) and the speech appears only an attempt by you to rationalise for yourself your own rejection. You claim to speak for the “real Indian people who have a voice”. It is a false claim. The real Indian people voted your party out of power. Or is it that you feel they are not “people” or are they not “real people” or that they are a people who should be denied a “voice”? 

There is an essay “In Praise of Folly” which was a attack on certain traditions of the European society and Church in which “Folly “praises itself. “Folly” in that essay is nursed by “ignorance” and has “flattery”, “self-love” and “madness” as companions with “intemperance” as God. I feel you read it for the literal meaning. The essay was meant to be a satire. And being a satire the expression was meant to be different from if not opposite to what was suggested.

Which brings me to the final question. Will we now have an encore? Or do you feel you are not to be questioned!

 

JUSTICE SHAH & AFZAL GURU PARADOX

I was less horrified by the louts of JNU who shouted themselves hoarse for the terrorist Afzal Guru, an arch enemy of India, and wantonly showed extreme malevolence towards the country through slogans steeped in hate in a ferociously savage display of anti-national sentiments than by the comment of Justice A.P.Shah who chose not to comment on this feral display of untamed animosity towards the country and instead rued, and I quote him, “executive let him(Afzal Guru)down”!!

A phrasal verb of “let” the expression “let him down” means failing to support or help someone as they hoped. Its synonyms are disillusioned, disappointed and forsaken. The “executive”, and I presume Justice Shah was referring to the Government of India, thus (so Justice Shah believes) failed to support or help Afzal Guru and in this failure disappointed him (Afzal Guru) who thus felt “let down”.

Now louts (like the howling wailing assortment of Afzal Guru supporters) are proven bumpkins who are known to act like philistines and to expect them to show any intelligence, sense or luminosity would be utterly foolish but a retired Chief Justice of a reputed High Court of the country is judged by different standards for obvious reasons. Or can it?

If Indian government “let Afzal Guru down”, as Justice Shah believes, it would have betrayed its trust. The “betrayal” would entail that India behaved traitorously towards him. And this, in turn, would mean that it violated a compact with Guru that the latter could join in the conspiracy to attack Parliament, kill people, and be exempt from punishment.

This put me in a dilemma. Punishment could only follow prosecution. And if punishment was wrong prosecution could not be justified. Afzal Guru could not have been arrested in the first place! Justice Shah does not seem to support this extreme position. His objection is to the imposition of death sentence.

But here comes the Afzal Guru Paradox – the credit for which goes to Justice Shah. If Afzal Guru was expected to attack Parliament and he acted accordingly as to make his punishment for it an act of betrayal by the government how could he be given any punishment at all be it death or sentence for life the latter being the one Justice Shah was a votary of? There is a contradiction inherent in the comment.

Or does Justice Shah believe Afzal Guru should not have been punished? That is the only way the “let down” comment can be justified. The man then is not a criminal but a martyr. The heroic act of attacking Parliament and the selfless killing of people showed Afzal Guru’s love for India for which he died!!

Is this not what the louts of JNU were contending? The similarity with louts should be embarrassing for Justice Shah. The embarrassment, however, would falsify the comment!

This topsy turvy world reveals a contradiction in the reasoning and the argument of a learned Judge. Can then the noisy yelling and bellowing equivalent of the same be coherent or justified?

If anyone is let down it is our country and its countrymen. First by the delayed punishment to Afzal Guru and now wailing frenzy of the uncouths of JNU and then by the teary-eyed comment of Justice Shah.