South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

By Sana Altaf

SRINAGAR, India, Oct 10, 2011 (IPS) – “Is Afzal Guru really the person that so many Indians supposedly want dead? Or are they taking out their frustrations on an easy target?” asked Human Rights Watch, referring to the death sentence handed down to the Kashmiri man who was convicted of conspiracy in the 2001 suicide attack on the Indian Parliament.
“For many, Afzal bears the burden of representing all those who dare to oppose Indian rule in restive parts of the country, because the attack on Parliament was an attack on India,” said the statement by Meenakshi Ganguly, South Asia researcher for global rights watchdog HRW.
“Conversely, many Kashmiris would say that Afzal is a freedom fighter, planning an attempt at the symbol of Indian oppression,” adds the statement, titled ‘Life, Not Death: Why Afzal Mustn’t Hang’. “Both views are flawed. For this multi-religious, multi-ethnic, multi-cultural state to survive, Indians have to believe in equal justice for all. And in the case of Jammu and Kashmir, there has been consistent failure to deliver on this promise.”
A Kashmiri, supported by a wife who is a doctor and a lone teenage son, Mohammad Afzal, commonly called Afzal Guru, was found guilty of conspiracy in the attack on parliament which killed more than a dozen people. He was given the death penalty, which was upheld by the Supreme Court in 2004.
The sentence was to be carried out in 2006, but the execution was stayed following a mercy plea filed by Afzal Guru.
Although most nations across the globe – a total of 139 – have abolished the death penalty, India continues the practice, as the World Day Against the Death Penalty once again rolled around on Oct. 10.
India joined 53 other countries to vote against the December 2007 United Nations General Assembly moratorium on executions, passed with 104 votes in favour and 29 abstentions. However, Indian judges generally follow the 1983 Supreme Court ruling that the death penalty may be resorted to only in the “rarest of rare cases”.
Afzal’s death penalty has not gone down well amongst various quarters in Kashmir. The separatist leaders view it as an unjust step, which would endanger the political situation in Kashmir
“I am completely against execution of Afzal Guru. He didn’t get a fair trial. Hanging him would be pure human rights violation,” said Shabir Ahmad Shah, the chairman of the Democratic Freedom Party, a separatist organisation.
He says that Afzal’s hanging could have a negative impact on the situation in Kashmir. “When Maqbool Bhat was hanged in India’s Tihar jail in 1984, it was followed by insurgency. And if Afzal is also hanged, it will as well result in dangerous consequences,” Shabir told IPS. “People would surely come on streets and protest against it as no Kashmiri wants his hanging.”
The unrest in Kashmir has its roots back in 1947, when Britain granted India independence and the Muslim-dominated areas became part of Pakistan. A U.N. resolution, meantime, gave Kashmiris the option to join either Hindu-dominated India or Pakistan or to become independent. But Kashmiris had no chance to make a choice as their homeland is claimed by both India and Pakistan.
Roughly a third of modern-day Kashmir is administered by Pakistan while the rest is under India. But many Kashmiris challenge this, and protesters living on the Indian side rose up in arms in 1989 in an insurgency that simmers to this day.
Saying Afzal did not get a fair trial, Sajjad Lone, another separatist leader, said intellectuals, NGOs and civil society in general needs to stand up against Afzal’s execution, which he said “will not suit the people of Kashmir.”
Hardline separatist leader of Kashmir Syed Ali Shah Geelani warned of “dire consequences” if Afzal Guru is hanged, saying in a statement in August that “it will unleash a storm.”
Human rights activists and organisations have also criticised Afzal’s death sentence, which they see as a human rights abuse.
“Afzal Guru’s case is being adjudicated upon in terms of its politics, not in relation to the violations of process and hearing that have taken place. The death penalty has no place in a democracy,” said Angana Chatterji, a professor of social and cultural anthropology at the California Institute of Integral Studies (CIIS) in San Francisco, and the co-convener of the International People’s Tribunal on Human Rights and Justice in Kashmir.
Chatterji says despite the international movement to abolish capital punishment and the 2007 U.N. moratorium on executions, “India continues to impose the (death) penalty. The allocation of capital punishment continues to be influenced by racism, ethnocentrism, and class prejudice, authorising the state to act against a person’s right to life.”
Kashmir-based human rights activist Khurram Parvez, a co-founder of the Jammu and Kashmir Coalition of Civil Society (JKCCS), says the sentence handed down to Afzal was not based on a fair trial.
“If anyone reads that judgment, one would come to know that he was pronounced guilty on secondary evidence. No direct evidence was produced in the court against Afzal Guru,” Parvez told IPS.
Citing the Supreme Court sentence, he said it states that “the incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender.”
“When there is no evidence against Afzal, why should he be hanged? To satisfy the collective conscience of society, it appears India needs a sacrifice,” Parvez added.
Advocate Faisal Qadri said the death penalty should be abolished in India. “I am completely against the death penalty. It is the worst kind of human rights violation. Humans have no right to kill anyone, even if it is a criminal.”
And Qadri argued that in Afzal Guru’s case, capital punishment is completely unjustified: “Even India’s own leading lawyers admit that Afzal was not given a fair trial.”
For ordinary people, the sentence handed to Afzal is a manifestation of India’s bias against Kashmiris.
“The Indian system is biased against Kashmiri people…there are scores of innocent Kashmiri youth who are arrested on the basis of mere suspicion and put behind bars for years with no evidence. How can we expect India to be just to Afzal?” said Iqbal (who provided only one name).
“Whenever any Kashmiri is found involved in any wrong act, India has to act in an unjust manner. That has been India’s policy towards Kashmir,” says Amina Maqbool, a political science student from the University of Kashmir
The HRW statement says the group “unequivocally opposes the death penalty. Guilty or not, we believe that neither Mohammad Afzal Guru, nor (law student) Priyadarshini Mattoo’s killer, Santosh Kumar Singh, nor (former Iraqi president) Saddam Hussein, nor anyone else, should be executed.
“Taking the life of a human being is inherently cruel, and as a form of punishment is unique in its irreversibility. The intrinsic fallibility of all criminal justice systems assures that even when there is a fair judicial process, innocent persons will still be executed. On a practical level, there is no evidence that it is an effective deterrent,” it adds.