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Of Criminals, Martyrs and Innocents

Today one comes across legal experts, politicians and human rights activists who support the sentencing of one particular accused, but oppose a similar sentence on another who is accused of a crime of the same nature. Such inconsistencies reflect the basic conflict between an anachronistic legal system and newly emerging political interests and humanitarian concerns that are at odds with its fixed rules.

Of Criminals, Martyrsand Innocents

Today one comes across legal experts, politicians and human rights activists who support the sentencing of one particular accused, but oppose a similar sentence on another who is accused of a crime of the same nature. Such inconsistencies reflect the basic conflict between an anachronistic legal system and newly emerging political interests and humanitarian concerns that are at odds with its fixed rules.

SUMANTA BANERJEE

T
here is a grey area in the history of every society, which is inhabited by criminals branded by the state, martyrs lauded by certain groups, and innocents caught up in the conflict but unable to fit into either of the slots. Indian jails and courtrooms are seething with such people. Some among them have been recently fortunate enough to draw the attention of legal experts, politicians, and human rights activists who have entered into a debate. In the dissonant chords of the debate, we can make out sounds that hem and haw and those that blare their partisanship. Some support the sentencing of one particular accused, but oppose a similar sentence on another who is accused of a crime of the same nature. Even those who have been consistently pleading for the abolition of capital punishment, keep mum when such a sentence is passed on certain people accused of heinous crimes like rape and murder. Such inconsistencies reflect the basic conflict between an anachronistic legal system and newly emerging political interests and humanitarian concerns that are at odds with its fixed rules.

To take the highly controversial death sentence passed on Afzal Guru in the case of the terrorist attack on Parliament, the Sangh parivar politicians are baying for his blood, demanding that he should be immediately hanged since the apex court has sentenced him to death. Their insistence on respecting court orders in this particular case stands out in sharp contrast with their utter disrespect of the judiciary in the past – the most notorious example being their reneging on the assurance that they gave to the court, which they violated by demolishing the Babri masjid.

If Afzal Guru – for his alleged assistance to the terrorists – is made responsible for the killing of security forces in Parliament, why should not L K Advani be pinned down for aiding and abetting the ‘karsevaks’ in the massacre of Muslims in the trail of his infamous ‘rathayatra’? It is these same politicians who oppose the death sentence on Dara Singh, the killer of the Christian missionary, Graham Staines. In their view, Dara Singh is a hero to the cause of protecting the Hindu dharma, while Afzal Guru, being a Kashmiri Muslim, is bound to be an Inter-Services Intelligence (ISI) agent. But curiously enough, these same Sangh parivar leaders choose to remain silent about the Hindu spies of the ISI – employees of our union ministries of home and external affairs, who are regularly caught for passing on information to the Pakistan embassy, or Hindu officers of the armed forces who have been found to be acting as agents of US intelligence. If the parivar is so concerned about national security, why does it not demand the death penalty for them? What is sauce for the goose is sauce for the gander too!

We can dismiss saffron doublespeak, but let us come to the more serious questions posed by human rights activists and Kashmiri politicians. They base their arguments mainly on three grounds – (i) the palpably flawed process of the trial where Afzal Guru was denied a fair hearing;

(ii) the apprehension that his hanging might turn him into a martyr, intensify Kashmiri animosity against the Indian state and add fuel to the militancy – a point made by some politicians from the Valley; and

(iii) the wider issue of the humanitarian need to abolish capital punishment. That Afzal Guru did not receive a fair trial is obvious from the court proceedings. What

Economic and Political Weekly December 16, 2006 is even worse is that the extreme punishment is out of all proportion to the nature of his crime, since he did not directly perpetrate the crime. The court acknowledged that there was no evidence that at the time of the offence he was a member of a terrorist organisation. From this, it does not logically follow that “the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender” – the sentiments expressed by the court while passing the judgment. The conscience of our society had all along been divided regarding the behaviour of the prosecution in dealing with the attack on Parliament on December 13, 2001. While the police, the political executive and the media acted in complicity to promote a version of conspiracy that allowed them to nail certain individuals as ISI agents, there was also a strong section of society that comprised of lawyers and civil rights activists who carried out a sustained campaign – both in the streets and the courts – that tore to shreds the false case of the prosecution. In this battle, they succeeded in saving at least one innocent person from the gallows – S A R Geelani, whom the judges finally acquitted. Afzal Guru was not fortunate enough to have a lawyer of his choice to argue his case. It is strange that the court that imposed the extreme penalty on him did not care to take into consideration this background and the basic flaw in the legal proceedings. Nor did it bother to take into account the other half of the “collective conscience” that had been protesting against the manner in which the prosecution had been nailing innocents on false charges.

Judicial Activism or Judicial Abetment?

The judgment is likely to cast a dark shadow far beyond this particular case, raising doubts about the general efficacy, as well as the sense of responsibility, of certain sections of the present Indian judiciary in deciding on cases that are of a serious and sensitive nature. To a large extent, it may detract from the image that the Indian judiciary had acquired by its proactive interventions on public interest litigations in the recent past, which had helped citizens to protect their rights. But while a few judgments had offered relief to some members of the oppressed, other verdicts had aroused tremendous opposition (for example, the Narmada dam case). This may have to do as much with the discretion of individual judges as with the steel frame of an outmoded legal code. Some, who are sticklers for the strict implementation of the code, may pass judgments with the industrial efficiency of a computer. Others could be swayed by humanitarian concerns or their personal political views.

Even those judges, who claim to be free of such biases and strictly adhere to the legal code, often end up with judgments that target the poor and the deprived. Let us recall the role of justice V R Krishna Iyer – an ardent champion of the concept of positive discrimination – who in 1975 signed the death sentence of Kista Gaud and Bhumaiya, two Naxalite peasant leaders of Andhra Pradesh, accused of killing landlords during an uprising in Adilabad. The Supreme Court bench, of which he was a member, that passed the death sentence, while acknowledging that their offence was of a political nature as

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Economic and Political Weekly December 16, 2006

distinct from plain murder, pointed out that “the penal code which, by oath of office (we) enforce, makes no such classification…. (and) we cannot rewrite the law, whatever our own views on urgent reforms.” Hoping that their verdict would be reversed by the president who enjoyed the power of clemency, the judges added: “The political nature of the offence and the undoubted decline in capital punishment in most countries of the world should be urged before the President…” Needlessly to say, the appeal did not evoke any positive response from the then president (who was working as a rubber-stamp for the Emergency regime), and Kista Gaud and Bhumaiya were hanged.

Strangely enough, after three decades, it is the Bharatiya Janata Party (BJP) leader L K Advani who has brought up the question of “political nature” of offences. Whenever he is accused of his complicity in the mass killings in the wake of his notorious rathayatra, he claims that the campaign for a Ram temple in Ayodhya was a “political” movement, and it should be treated therefore on a different footing. Surely there is a need for differentiating an act of law breaking prompted by political motives and that dictated by extra-political considerations. But then, what makes a movement political? What was the ideology behind the Ayodhya movement? It was essentially based on a religious belief that Advani manipulated to rouse popular frenzy among the majority community that was directed against Muslims. Can such a mass homicidal mania be sanctified as “political”? If his violence-laden religious campaign can be excused as “political”, the Islamic terrorists who set off the murderous Mumbai blasts in 1993 can also demand equal indulgence by claiming that their act was a “political” retaliation against the destruction of Babri masjid and the killings of Muslims by Advani’s karsevaks.

The issue raises tricky questions. Should the Indian judiciary continue to accept the term “political” to excuse types of violent sectarian demonstrations that are basically of a religious nature – whether by the saffron brigade or the Islamic fundamentalists – which threaten the secular foundations of our Constitution? In contrast, should it ignore the genuinely political basis of certain other types of agitations that violate the law, but are aimed at implementing those egalitarian objectives spelt out in the directive principles of state policy of that Constitution that promise “a social order for the promotion of welfare of the people”? How should the judiciary view the peaceful agitation of those who are seeking relief for and rehabilitation of the oustees from the Narmada dam site, or the violent movement of the Naxalites who are fighting for the legitimate rights of the tribal poor and other underprivileged sections which had been suppressed for ages by an oppressive state machinery? Our honourable judges can surely make out the difference between the objectives of those who, masquerading as political parties, are bent on subverting the Constitution and are intent on establishing an obscurantist religious social order (whether Hindu or Islamic) on the one hand, and those who are fighting on the other hand to protect the basic secular and socialist premises of the Constitution.

But, sad to say, in pussyfooting around the Babri masjid demolition case involving Advani and other BJP leaders, the judiciary is lending itself to the suspicion of discriminatory treatment. It is strange that while with breathtaking alacrity the court can sentence an Afzal Guru to death (to “satisfy the collective conscience”), and pass judgments on the accused in the 1993 Mumbai blasts, it drags its feet in trying those held guilty by the Srikrishna Commission for the equally heinous crime of mass killings of Muslims in Mumbai in December 1992-January 1993. How do the judges define “collective conscience”? Does not our society’s collective conscience demand the punishment of those who massacred Sikhs in Delhi in 1984, those who carried out a genocide of Muslims in Gujarat, those who continue to lynch dalits in the villages of India? How has the judiciary responded to these demands of the collective conscience? One cannot but suspect a sneaking bias behind the sophistry of legal rigmarole indulged in by conservative sections of the judiciary, which may be too eager to satisfy the vengeful spirit of the majority community. Remember the judicial approval given to Hindutva by a Supreme Court judge in 1995? Remember the behaviour of the Gujarat High Court bench in the Best Bakery case? Crimes committed by Muslims are far more likely to be prosecuted than those by Hindus, as evident from the Rajinder Sachar committee report, which reveals that the Muslim percentage of inmates in jails is as high as – or even higher than – their share in the population. If we contrast this picture of their over-representation in jails with that of their under-representation in the judiciary (another revelation made by the Sachar Committee), it would not be difficult to see why a judicial system dominated by such a communal disparity is likely, not only to remain indifferent to the specific problems of the minority communities, but also to be swayed by traditionally nurtured prejudices against them.

‘Our Rascals’, ‘Their Rascals’

But it is not the prosecution and the judiciary alone that are to be blamed. A certain ambiguity in the approach of human rights groups and the media towards the interactive relationship of crime and punishment also occasionally unhinges their interventionist position. While the death sentence on Afzal Guru, for instance, is opposed vehemently by civil liberties organisations and lawyers, a similar sentence imposed on a rapist-murderer is either ignored by them, or – in certain cases even greeted by the media as a triumph of their investigative journalism that led to the conviction of the accused (as in the recent sentencing of the murderer of Priyadarshini Mattoo). This is in fact a recognition of the reality that capital punishment of notorious criminals still enjoys support among large sections of civil society. To give an example – on August 13, 2004, a gangster of Nagpur called Akku Yadav, who used to terrorise and rape the women of the slum of Kasturba Nagar, was lynched by a mob of around 200 women from the slum. Significantly enough, these women chose to hack him to death in the premises of the Nagpur district court – to show their defiance of the judiciary that had failed to give them justice, and to establish their own alternative penal system. Interestingly again, after the incident when some among the women were arrested, prominent lawyers issued a statement saying these women should not be treated as accused, but as victims.

It is obvious that our civil society is divided over categorising the different types of the accused, and the different ways of treating them. As Sevanti Ninan put it succinctly in the media matters section of The Hindu recently: “Some are lovable, some are martyrs, and some are criminals”. A cynical western politician was once reported to have said, while defending a disreputable supporter, “He may be a rascal, but he is our rascal!”

Economic and Political Weekly December 16, 2006 Something of the same sort seems to be happening in our present debate on judicial activism. Each group – whether a political party or a human rights organisation or a professional lawyer – has adopted its/his/her own “rascal” to defend. They support or oppose judicial intervention, depending on how far it suits them. The recent controversy over the role of the veteran maverick advocate Ram Jethmalani, illustrates the point that I am trying to make. He was lauded as a hero by one section of human rights activists when he defended S A R Geelani in the Parliament attack case, but drew the ire of another section when a few days later he decided to become the defence lawyer of the high-profile son of a Haryana minister who was alleged to have shot dead a model in front of several witnesses in a restaurant in Delhi on April 29, 1999.

Still more problematic is the contention

– usually made by certain Kashmiri politicians – that Afzal Guru should not be hanged, as it would provoke further unrest among Muslims in the Valley and fuel militancy. This echoes the specious argument offered by some that judicial retribution against those accused of killing Muslims in Gujarat could lead to resentment among Hindus and aggravate communal tensions. Should human rights activists who had been seeking justice for the victims of the Gujarat massacre agree to this plea for going soft on its perpetrators? In fact, Afzal’s defenders need not invoke a Kashmir-centric futuristic nightmare, but argue his case on grounds that have enough solid legal basis. His crime, by no stretch of legalistic manipulation, can be equated with the carnage carried out by the goons of the Sangh parivar in Mumbai in 1992-93 and Gujarat in 2002. At the same time, those human rights activists taking up his case should remember that he is not all that lily-white, and has dubious antecedents. He is reported to be a surrendered militant who worked as an agent of the Indian security organisation in Jammu and Kashmir known as State Task Force (STF) for some time, and then he fell out with his bosses for some reason or other. His alleged offence and prosecution are thus mired in a mesh of intrigues. Given this background, it would be good if human rights lawyers – while surely arguing his case – refrain from turning him into a martyr.

It is more important to launch a concerted campaign for redesigning the prevailing judicial system. It is through its well-greased revolving doors that the well-connected criminals enter as accused and come out as innocents after being acquitted by the court, while obscure petty mercenaries and hirelings can be dragged through those doors into the death cell without any exit. It is about time that both lawmakers and human rights activists clarify their respective stands and agree on certain fundamental criteria, according to which the outmoded laws could be rewritten to define acts as crime and apportion penalties, not only in conformity with the nature of the offence but also keeping in mind the socio-economic background or the ideological belief of the accused – the awareness of which is missing in our jurisprudence.

EPW

Email: sumbiz@sancharnet.in

Economic and Political Weekly December 16, 2006

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