Issue of Afzal Guru

Mohammad Afzal Guru (died 9 February 2013) was convicted in the December 2001 attack on the Indian Parliament, and was sentenced to death by a special Prevention of Terrorism Act Court in 2002. The Delhi High Court confirmed the judgment in 2003 and his appeal was rejected by the Supreme Court of India in 2005.[2] The sentence was scheduled to be carried out on 20 October 2006, but Afzal was given a stay of execution and remained on death row. On 3 February 2013, his mercy petition was rejected by the President of India Pranab Mukherjee. He was hanged at Delhi’s Tihar Jail around 08:00 A.M. on February 9, 2013.

Early life

Guru was born in Aabgah village near Sopore town in Baramulla district of Jammu and Kashmir in 1969 to the family of Habibullah. [4][5] He completed his schooling from Government School, Sopore. He passed the Matriculation exam in 1986 and completed his higher secondary education in Sopore. He subsequently got enrolled in medical college. He had completed the first year of his MBBS course and was preparing for competitive exams.[6]

Training

His native place is Sopore and he was doing a commission agency business. It was during this business venture that he came into contact with Tariq of Anantnag , who motivated him to join Jihad for liberation of Kashmir and assured him of financial assistance. He crossed the Line of Control and proceeded to Muzaffarabad in Pakistan Occupied Kashmir. He became a member of Jammu Kashmir Liberation Front where he received terrorist training in Pakistan.[6] After learning how to handle arms and ammunition, he returned to Sopore and led a group of nearly 300 militant terrorists. On a visit to Kashmir in 1998, he married a Baramulla native Tabassum. Unhappy with the situation in Pakistan Occupied Kashmir, he moved back to Kashmir. He did odd jobs and completed his graduation from Delhi University in the year 1993-94. While studying he met Abdul Rehman Gilani, who was pursuing his post graduation course. In the summer of 1993-94 on the advice of his family, he surrendered to the Border Security Force and returned to Delhi where he worked till 1996.[4][6] He took up a job with a pharmaceuticals firm and served as its area manager. Simultaneously, he worked as a commission agent for medical and surgical goods in the year 1996. During this period, he used to shuttle between Srinagar and Delhi. It was his business that led to a meeting with one Tariq, who claimed to be a doctor. This resident of Anantnag convinced Afzal to aid some Pakistan-trained terrorists in their deadly mission.[5] Tariq introduced him to Ghazi Baba, who was equipped with wireless set and satellite phone. Even Ghazi Baba motivated him and gave him literature containing speeches of Maulana Masood Azhar. He agreed to work for them and was assigned the task of providing a safe hideout for the Fidayeens in Delhi.[4] He was apprised of the mission to carry out attacks on important institutions in India, like the Parliament and embassies, and asked to find a safe hideout for the terrorists in Delhi.[7] He has himself confirmed these in his own interviews with various newspapers.[8]

In an interview to news agencies, he had confessed to the same and said:[9]

“Yes, I first took training in Pakistan. I went to PoK (Pakistan Occupied Kashmir) in 1990. I stayed there for 15 days and took training from a Pakistan’s Army retired officer. I stayed in Kashmir for 20 days. There I saw the entire business. There was no freedom fight. There was no logic. There was lot of bloodshed. They were trying to earn money over there.”

The case

The attack was conducted jointly by the Lashkar-e-Toiba (LET) and the Jaish-e-Mohammad (JEM). Seven members of the security forces were killed, as were the five still incompletely identified men who carried out the attack.

Following were the charges against Afzal Guru:[4][2]

  • Waging, or attempting to wage war, or abetting waging of war, against the Government of India and Conspiracy to commit the same – Section 121 and 121A of the Indian Penal Code
  • Collecting arms, etc., with intention of waging war against the Government of India – Section 122 of the Indian Penal Code.
  • Criminal conspiracy to commit murder and attempt to commit murder – Section 120B read with Sections 302 & 307 of the Indian Penal Code
  • Conspiring to commit and knowingly facilitating the commission of a terrorist act or acts preparatory to terrorist act and also voluntarily harbouring and concealing the deceased terrorists knowing that such persons were terrorists and were the members of the Jaish-e-Mohammad, a banned terrorist organisation, which is involved in acts of terrorism; and hence committing an offence punishable under Section 3(3) (4) and (5) of Prevention of Terrorism Act, 2002.
  • Possession of INR 10 Lakhs given to him by the terrorists who were killed by the police when they attacked the Parliament of India.

On 15 December 2001, Afzal was arrested by Delhi Police from from Jammu and Kashmir. SAR Geelani was picked up for questioning and was later arrested from Delhi. Two others – Afsan Guru and her husband Shaukat Hussain Guru — were picked up later. On 29 December 2001, Afzal was sent to 10-day police remand. In June 2002, charges were framed against all four of them.[10]. Eighty witnesses were examined for the prosecution and ten were examined for defense.

Conviction

On 18 December 2002, a death sentence was given to Afzal Guru, S A R Geelani and Shaukat Hussain Guru, while Afsan Guru was let off. In August 2003, Jaish-e-Mohammed leader Ghazi Baba, who was a prime accused in the attack was killed in an encounter with the Border Security Force (BSF) in Srinagar. Three other militants, along with him were also killed in the 10-hour encounter. In October 2003, on an appeal, Delhi High Court upheld the order.

The judgment mentions:

“The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the Government as well as disrupting normal life of the people of India is something which cannot be described in words. The incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of the society will be satisfied if the capital punishment is awarded to the offender.”[11]

On December 19 2001 he made a confession of the offenses, which was recorded and signed by him. He also confirmed having made the confessional statement without any threat or pressure.[12]

He was convicted for the offenses under Sections 121, 121A, 122, Section 120B read with Sections 302 & 307 read with Section 120B IPC, sub-Sections (2), (3) & (5) of Section 1, 3(4), 4(b)of POTA and Sections 3 & 4 of Explosive Substances Act. He was also sentenced to life imprisonment on as many as eight counts under the provisions of IPC, POTA and Explosive Substances Act in addition to varying amounts of fine.[13]

An appeal was made to the Delhi High Court, but after going through the case and taking into consideration various authorities and precedents, the Court found that the conviction of Afzal Guru was correct and hence his appeal was dismissed.[4] The co-accused in the case, S.A.R Geelani, was acquitted by the high court.[14][15]. Hence, although initially, the death penalty was meted out to S.A.R Geelani (who was presented as the mastermind behind the attack), Afzal Guru and Shaukat Hussain Guru, only Afzal Guru’s death penalty was upheld by the Supreme Court.[15]

In August 2005, Supreme Court, while confirming the death sentence of Afzal Guru, commuted Shaukat Hussain Guru’s death sentence to 10 years of rigorous imprisonment.[7] [10].

In October 2006, Afzal Guru’s wife Tabasum Guru filed a mercy petition with then President A. P. J. Abdul Kalam. In June 2007, Supreme Court dismissed Afzal’s plea seeking review of his death sentence, saying “there is no merit” in it. In December 2010, Shaukat Hussain Guru was released from Delhi’s Tihar Jail due to her good conduct.[10]

In its judgement, the Supreme Court observed:

“As criminal acts took place pursuant to the conspiracy, the appellant, as a party to the conspiracy, shall be deemed to have abetted the offence. In fact, he took active part in a series of steps taken to pursue the objective of conspiracy.”

Supreme Court of India, Judgement on Appeal by Afzal Guru on August 5 2005.[7][16]

The Supreme Court held that the circumstances detailed in the judgment clearly established that Afzal was associated with the deceased terrorists in almost every act done by them in order to achieve the objective of attacking the Parliament House. It also observed that there was sufficient and satisfactory circumstantial evidence to establish that Afzal was a partner in this conspired crime of enormous gravity. It has to be noted, that in its judgement of August 5, 2005, the supreme court admitted that the evidence against Afzal was only circumstantial, and that there was no evidence that he belonged to any terrorist group or organisation. He was subsequently meted out three life sentences and a double death sentence.[16]

Confession

The evidence against Afzal also included his confessional statement, which was recorded by the DCP, Special Cell. It was recorded in the preamble of the confession that DCP had asked the policemen present there to leave the room. After that he had warned and explained to Afzal that he was not bound to make the confessional statement and that if he did so, it could be used against him as evidence. Thereupon, it was recorded that Afzal was not under any duress and he was ready to give the confessional statement. The signature of Afzal was found beneath that endorsement.[16] The Supreme Court was angered by the act of police officials, who, in their over-zealousness, had arranged for a media interview.[16] However, after seven months, Afzal disowned this confession and the Supreme Court did not accept the earlier confession as an evidence against him.[16]

In the interview given to several media houses, he openly confessed that he was the person who brought the other four people involved in Parliament attack. He also said that he was asked to motivate Mohammad to achieve the target as soon as possible.But later it was revealed that these confessions were made under duress. This was the opinion of the senior Lawyer of the Supreme Court Ms Kamini Jaiswal who was representing him in the Supreme Court of India.[9]

Clemency pleas

There was an appeal to issue clemency to Afzal from various human rights groups including political groups in Kashmir, who believe that Afzal Guru did not receive a fair trial and was subjected to a frame up of corrupt and inefficient police work.[17] Human rights activists in various parts of India and the world have demanded reprieve as they believe that the trial was flawed. Arundhati Roy and Praful Bidwai castigated the trial and argued that Afzal has been denied natural justice.[18] Accusations of human rights violations have been made by many.

Former Jammu and Kashmir Chief Minister Mufti Mohammed Sayeed and local political groups voiced their support of clemency for Afzal. It was alleged many have done so to appease Muslim voters in India.[19] However there were protests (with instances of stone pelting at Indian security forces) in Kashmir against the planned execution of Afzal Guru in 2006.[20][21]

Communist Party of India (Marxist) was critical of both the Congress as well as of the BJP, and claimed it was delaying the legal procedure in the case accusing it of trying to whip up enmity between communities in the name of a crime done by a group of criminals. The party wants the law of the land to take its course without any interference.[22]

Ram Jethmalani held that it is completely within the President’s power to commute the Death sentence and is not a mercy plea. He said, “It’s a misnomer to call it a mercy petition. It leads to total misunderstanding of the constitutional power. The constitutional power is that the President has the power to disagree with the Supreme Court both with its findings of fact and law.”[23] The case became political and it was not carried out because of fear of revenge attacks. The Jammu and Kashmir People’s Democratic Party president and MP, Mehbooba Mufti commented that the Centre should pardon Afzal if Pakistan accepted the clemency appeal for Sarabjit Singh.[24] Mehbooba said that if clemency appeals were made for Sarabjit citing his Indian nationality, voices should also be raised for Afzal for “he too is an Indian citizen”. “Two citizens of India cannot be treated with different yardsticks” she had said.

However, the All-India Anti-Terrorist Front Chairman Maninderjeet Singh Bitta urged the President of India not to accept any clemency pleas on Afzal’s behalf. He warned that his organisation would launch agitations if Afzal was pardoned. He also criticised statements of various political leaders and blamed them for “encouraging activities of terrorists in Jammu and Kashmir”.[25]

An India Today poll in late October showed that 78% of Indians supported the death penalty for Afzal.[19]

On 12 November 2006, the former Deputy Prime Minister of India, Lal Krishna Advani criticized the delay in carrying out the death sentence on Guru for the Parliament terror attack, saying, “I fail to understand the delay. They have increased my security. But what needs to be done immediately is to carry out the court’s orders”.

The Bharatiya Janata Party (BJP) severely criticized Arundhati Roy. BJP spokesperson Prakash Javadekar said:

“Those who are supporting Afzal by demanding that he should not be hanged are not only acting against public sentiment in the country but are giving a fillip to terrorist morale”[26]

On 23 June 2010, the Ministry of Home Affairs recommended the President’s office to reject the mercy petition. On 7 January 2011, a whistle-blowing site indianleaks.in leaked a document which stated that the mercy petition file was not with President of India. This was rubbished by Kapil Sibal in a interview with NDTV.[27] This was confirmed by Home Minister P. Chidambaram in New Delhi on 23 Feb 2011. With the death penalty handed to Ajmal Kasab, the speculation was that Afzal Guru was next in line.[28]

On 10 August 2011, the home ministry of India rejected the mercy petition, and sent a letter to the President of India recommending the death penalty .[29]

On 7 September 2011, a high intensity bomb blast outside Delhi high court killed 11 people and left 76 others injured.[30] In an e-mail sent to a media house Harkat-ul-Jihad al-Islami, an Islamic fundamentalist organization, owned responsibility for the attack and claimed the blast was carried out in retaliation to Parliament attack convict Afzal Guru’s death sentence.

“We own the responsibility for today’s blasts at Delhi high court. Our demand is that Mohammed Afzal Guru’s death sentence should be repealed immediately else we would target major high courts and the Supreme Court of India.”[31]

On 16 November 2012, the President had sent back to the Ministry of Home Affairs (MHA) seven cases, including the one on Afzal Guru. The President wanted home minister Sushil Kumar Shinde to take a relook at the MHA opinion given during his predecessor P. Chidambaram’s tenure. On 10 December, Shinde said he will look at the file after the winter session of the Parliament concludes on December 20. [32] [33] On 3rd February 2013, his mercy petition was rejected by the President Of India.[3] Afzal Guru was hanged till death on 9th February 2013.[34]

Afzal Guru’s family was informed of his execution by a speed post letter which was delivered to their home in Sopore, two days after the execution. Postal officials in Srinagar stated that the letter was received on the evening of February 9 (Saturday), but could be delivered only on February 11 (Monday), because February 10 (Sunday) was a public holiday.[35]

Aftermath of Execution

Most political parties[36] with exception of Kashmiri politicians welcomed the move by the Government of India. The BJP stated that it was a correct move albeit very late. It also stated that the public opinion forced Afzal Guru’s hanging.[37] The Chief Minister of Jammu and kashmir had severely criticized government action and stated that ,it is for the first time in free India a person has been hanged on circumstancial evidence and his family members were not informed.

PDP (a Kashmiri political party) spokesman Naeem Akhtar also criticised Guru’s burial inside the prison complex in New Delhi, saying the body should have been given to his family in Kashmir. The All Parties Hurriyat Conference announced a four-day mourning on the death of Guru.The Tihar Jail authority had earlier said that his family members were informed about the hanging by Speed Post. The letter reached his widow two days after his death.

A curfew was imposed in Kashmir to prevent any kind of protests in support of Afzal Guru. However protests flared up in parts of the Valley and groups of young men defied curfew and stoned security forces in Sopore, Guru’s hometown, Baramulla in North Kashmir and Pulwama in South Kashmir and certain other areas.[38] Thirty-six people including 23 policemen were injured in protests, said police spokesman Manoj Sheeri, with most of the violence in Guru’s home district. Authorities shut down internet services to try to stop news of the hanging and unrest spreading. The chief minister of Jammu and Kashmir state, Omar Abdullah, made a televised appeal for calm.[39][20]

S.A.R. Geelani, a co-accused in the attacks on the Indian parliament, who was later acquitted by the Supreme Court in the absence of sufficient evidence[40] was taken into preventive custody by the Delhi Police.[41] He told media persons, that Afzal Guru’s hanging was a politically motivated gimmick and an example of vote bank politics.[42][42]. Justice SN Dhinga, the Judge who sentenced Guru and co-accused Shaukat Guru and SAR Geelani to death in 2002, termed the execution a political move stating that the judiciary took just three years to decide the matter while the executive took eight years to implement the same[43]

Omar Abdullah’s father, Former Chief Minister of Jammu and Kashmir, Union minister Farooq Abdullah said: “Afzal Guru’s mercy petition was put before the President. He rejected it. The matter is over.”[44]

Reaction of the Press

Although the Press in India has been supportive of Afzal Guru’s hanging, a section of the press raised apprehension on the manner in which the execution was carried out. In particular, the Times of India pointed out that since assumption of office as President Pranab Mukherjee turned down three clemency petitions – Ajmal Amir Kasab, Afzal Guru and Saibanna Ningappa Natekar.[45] According to Zee News website when Pranab Mukherjee on January 4, 2013 rejected the clemency of Saibanna Ningappa Natekar, sentenced to death for murdering his two wives and a daughter, the latter moved to Karnataka High Court praying that his mercy petition which was pending with the President April 29, 2005 as “the avoidable delay in deciding mercy petition is extra punishment and is not mandatory as there is a delay of seven years, eight months and six days in deciding the plea. Execution of death sentence, after a delay of seven years is whimsical, arbitrary, capricious and violation of Article 14.” He also termed it as violation of Article 21 of the Constitution. Karnataka High Court initially granted one week stay on the execution of Saibanna on January 22, 2012 which was subsequently extended to February 11, 2012 [46] It may be noted that article 14 of the Indian constitution grants equality before law to all citizens [47] while Article 21 grants Protection of life and Personal Liberty.[48] Further, according to Times of India,after Kehar Singh‘s execution in the Indira Gandhi case, Guru was the only conspirator to have ever been hanged in connection with any high-profile crime. The three conspirators in the Rajiv Gandhi case, although awarded death penalty earlier than Guru, have so far been spared the noose because of a stay from the Madras High Court on their execution. The stay came in 2011 on their plea that the death penalty be commuted to life sentence as the President had rejected their mercy petitions after an “inordinate and unexplained” delay. A major point highlighted by Times of India is the dilution of the due process evident from the government’s failure to comply with the stipulation of the jail manual to inform Guru’s family about the date of the execution. The compromise is more evident in Guru’s case because, unlike Kasab, his family members are Indians, who live in Kashmir. The rationale behind this stipulation is to provide the convict a chance to meet his family members for the last time.[45]

Home Minister’s Statement

Indian Union Home Minister Sushilkumar Shinde said that Afzal Guru’s family was informed about the hanging decision on time. He defended the secrecy government maintained in the execution saying that it would not have happened had the decision been made public in advance.[49] He also deniend the Jammu and Kashmir Chief Minister Omar Abdullah’s charge that he was kept in the dark about the Centre’s decision to hang him. He said: ““I personally informed Omar about the execution. Also, the family of Afzal Guru was informed on the night of February 07.”. Asserting the need to maintain secrecy, Shinde said, “This, as Ajmal Kasab’s case, was extremely sensitive, government had to be very careful. Secrecy has to be maintained in such cases.”[50] He also picked holes in Omar Abdullah’s assertion that Parliament attack convict Afzal Guru’s hanging was “out of turn.”[44]