By Hassan Zainagairi
‘……the incident which resulted in heavy causalities had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender…….’
________Supreme Court of India
After executing political murder of Muhammad Afzal Guru, Indian government is drumming it into us that everything was followed ‘strictly’ in ‘accordance with law’. But constitutional experts and legal luminaries point to the grave legal lacunas that raise questions on the fairness of the trial. The courts are on the record for having established that the accused was not present on the scene and that there was no direct evidence of his involvement . the courts have also observed that allegations against all the five accused were more or less of the same nature but though four accused were acquitted for lack of evidence, Afzal guru was implicated as ‘master mind’ behind the conspiracy in parliament attack. Remember all the five militant who attacked Parliament were killed by the Indian forces in the operation.
Notwithstanding with the shoddy investigation and aversion of various human rights organizations in this regard , for supreme court of India ‘satisfaction of collective conscience of the society’ became the final arbiter of justice. Obviously, supreme Court coining the new doctrine has revolted against the established and time tested principles in criminal justice system. Instead of deciding the case on merit and sift the real from the fake it perched ‘collective conscience of society’ atop in the hierarchy of justice system, making itself subservient. Perhaps it is first time in the entire history of justice system that ‘collective conscience of the society’ has been elevated to the level of Ombudsman, more appropriately , judicial Ombudsman, with constitutional authority and even given the role of a hangman.
Evidently, if judicial scrutiny has finally to stay at ‘satisfaction’ of society’s likes and dislikes, what for is creating these institutions? Why not hold a referendum and get the sentence approved in the yelling mob “jury”? Or, if parliament is the representative of this ‘collective will’ then it is the most suitable jury to pronounce the decision and, of course, without resorting to time –consuming court-trials. Hyphenated to this is the question, which ‘society’ you are referring to specifically? An 80 percent Indians who find themselves squeezed on Rs. 20 a day and perhaps has not heard Afzal Guru’s name or a minimuscle hegemonic chattering class who queers the pitch, aided by a horrifying cacophony in the studies of Indian TV channels?
In corralling Kashmiris in all-sealed prison Indian establishment has, of its own, scooped kashmiris out of its society fold. Clearly, it implies, kashmiris do not make a part of what you call Indian ‘society’ and ‘collective conscience’. The judgment thus exposes the rhetoric of Kashmir being the ‘integral part’ of India. And makes them blend with the cause that guru was hanged for. That is how they see their collective conscience get satisfied.
How does this ‘collective conscience’ grow into an authorities force ? Sucking form the teats of mortality tolerance and co-existence or feeding on bigoted nationalism, misguided patriotism communalism and parochialism? The recurring communal rites, Babri demolition, Gujarat Muslim carnage, Dalit’s plight, all reveal that ‘collective conscience’ is frayed and lacks coherence. And cannot hold a moral basis, much less authority.
Often the ‘collective conscience’ due to inherent class, regional, religious, linguistic and ethnic bias has got replaced with collective complicity leading to murder of justice and subverting truth. Just one example. Recently a credible international human rights group of IPTK in collaboration with a local organization of disappeared person APDP published a documented report of five hundred unmarked graves involving Indian forces who committed the heinous crimes. But the veneer of ‘collective conscience of the society’ remained immune of such ‘little aberrations’ (of 500 mass graves!)? They are not deemed worth a mention in passing by-Indian channels.
Strange this collective conscience bays for the noose of a person who is victim of shoddy investigations and whose case merited for relook as demanded by human rights group. But where horrifying cases of death, disappearance, rape and torture have pressing concrete evidence, even substantiated by State Human Rights Commission, not a murmur is heard, not to speak of raising a hackle of displeasure.
The author can be reached at firstname.lastname@example.org