A welcome judgement In contrast Afzal Guru’s hanging will remain a slur in the name of Indian democracy and justice

 punishment of 15 convicts on death row to life term in view of the inordinate and inexplicable delay in deciding on their mercy petitions is a welcome judgement. The court, while expressing grave concern over the inability of the authorities to perform their constitutional duty of deciding on the mercy petitions with a sense of immediacy, has observed that “prolonging execution of death sentence has a "dehumanizing effect" on condemned prisoners who have to face the agony of waiting for years under the shadow of death during the pendency of their mercy plea.” The court has also held that the right to life as guaranteed under Article 21 of the Indian constitution does not end with the pronouncement of sentence but extends to the stage of execution of that sentence and that delay in deciding mercy plea and to keep death-row convict waiting for their fate as violation of fundamental rights. Making no distinction between the convicts on death row, the division bench of the apex court has ruled that “gravity of offence cannot be a ground for delay: and all condemned prisoners whether convicted under IPC or anti-terror law are entitled for commutation. The court decision is based on principles of humanity and in consonance with the fundamental rights of citizens of the country, while deeming that stringest of punishments for worst of crimes cannot and should not amount to agony and a dehumanizing effect on those serving the sentence. This underlying spirit of the constitution needs to be upheld while delivering justice and in implementation of the legal justice system in the country. 

This juncture may also be an appropriate time to review the country’s policy on the capital punishment itself. The Indian legal justice system is not based on the pattern of revenge or honour and therefore the courts while signing death warrants of convicts use the word ‘rarest of rare’ for punishments in some of the heinous crimes. A recent report shockingly revealed that over 414 death convicts await the gallows in India. It raises a question mark on the very term of ‘rarest of rare’ that is so liberally being used. At a time when a world-wide debate is going on opposing capital punishment, death penalty cannot be allowed to become a routine event. This only ends up legitimising the practice of revenge. Such state sponsored and legitimised cases of homicide cannot be encouraged because killing a human being is an irrevocable punishment that leaves the victim with no opportunity for reform. It is time for India to follow the European model of abolishing death penalties altogether in view of the probability of inherent socio-economic and political prejudices dictating the course of some verdicts, some made erroneously, as has been demonstrated in the past. Instead the country should focus on better functioning and delivery of legal justice system with better investigating protocols to be strictly followed and speedy trials. 

Tuesday’s verdict is indeed a significant moment in the history of Indian judiciary, even though there is much more that needs to be done. However, as far as Kashmir is concerned, the judgement has come too late in the day. The case of Afzal Guru, convicted and sentenced in the Delhi parliament attack and hanged more than 11 months ago in Tihar jail, was no different from the 14 men on death row. Besides the fact that Guru never received a fair trial and that his conviction was based on circumstantial evidence and his term not in consonance with his guilt of simply having provided logistical support to the militants who attacked the parliament, his mercy petition was pending before the president for years. It was finally not only decided in haste, more as part of a political decision, his execution was done under a cloak of secrecy without even informing his family members and allowing them the chance of meeting him for the last time. The Supreme Court, while taking into account Guru’s case has de-legitimised not only the prolonged delays in deciding on mercy petitions but also such hurried executions that forbid the convict both the last chance of meeting his family members and of pleading for judicial review. Guru was clearly denied both. This verdict having come almost a year after he was hanged to “satisfy the collective conscience of the society” cannot qualify his execution to be an illegal one, though the ethical question would continue to haunt those who strictly believe that legal justice system cannot be grounded on the principles of revenge. The damage has been done and whether one looks at Guru’s hanging from the perspective of this verdict, from the perspective of principles of justice, from the humanitarian angle or from the prism of Kashmir’s politics and the adverse impact of such a monumental blunder, it is something that is irrevocable. It will remain a slur in the name of democracy, a blot that struck the finality of the unbridgeable distance between Kashmiris and rest of the country.