India: Was Afzal Guru denied a fair trial?

In February, Mohammed Afzal Guru was executed for his alleged involvement in the December 2001 attacks on India’s lower house of parliament, the Lok Sabha.

His execution has been described as a form of retributive justice, however, the glaring failures to provide Afzal Guru with a fair trial have led many to ask whether this was a gross miscarriage of justice?

Afzal Guru was a medical student in Kashmir. In 1989, he decided to cross over to Pakistan to receive training from a militant outfit, JKLF (Jammu and Kashmir Liberation Front). However, he became disillusioned with the organisation and surrendered to Indian border forces before his training had finished. He went on to complete his medical studies at Delhi University and later worked with a pharmaceutical firm.

His name was later to be embroiled with the parliament attacks on the 13^th December 2001, involving five gunmen said to be a part of the militant organisations Lashkar-e-Taiba and Jaish-e-Mohammed. They stormed the parliament gates and killed nine people before being gunned down by police.

Within 48 hours of the attack, Afzal Guru was arrested alongside his cousin, Shaukat Guru, Shaukat’s wife Afzan Guru, and a university lecturer, Sayeed Abdul Rahman Geelani, for their alleged involvement. The police described the arrests as “case cracked”. The charges were filed in a special fast-track court for cases under the Prevention of Terrorism Act 2002 (POTA).

In December 2002, all three men were sentenced to death, whilst Afzan Guru was sentenced to five years of ‘rigorous imprisonment’. On appeal to the High Court, both Geelani—the alleged mastermind of the attacks—and Afzan were acquitted, however the death sentences of Afzal and Shaukat Guru were upheld. In a Supreme Court judgement in 2005, Shaukat’s punishment was reduced to ten years of rigorous imprisonment, whilst Afzal’s sentence was extended to three life sentences and a double death penalty.

Afzal’s Confession
The police claim that it was Geelani’s arrests that lead them to Afzal, yet court records show the order to arrest Afzal was sent out before that of Geelani. This was declared as a material contradiction in court and the issue was then left untouched.

Geelani and Afzan Guru’s arrest, however, remains a mystery. The two, according to evidence, played absolutely no part in the conspiracy, hence their acquittal. What is more perplexing was the fact Geelani was initially sentenced to death on the basis of being the ‘lynchpin’ of the attacks but was eventually acquitted upon lack of evidence. Many have begun to ask why he was originally sentenced to death given the lack of evidence.

A week after the arrests of all four alleged co-conspirators, Afzal Guru made a confession whilst in police custody. In Afzal’s confession, he admitted to being a facilitator of the attack. He claimed that he was asked to carry out the task by members of the militant organisation, Jaish-e-Mohammed. He stated that a Jaish-e-Mohammed militant, Tariq, had asked him to take the five gunmen to Delhi and to provide them with everything that they needed in order to carry out the attacks. Afzal claimed that Tariq was not the real mastermind behind this operation but a senior militant called Gazi Baba who is also known as Shah Nawaz Khan.

Afzal then went on to name the five gunmen as Rana, Raja, Hamza, Haider and then finally the chief of the group, Mohammed.

Afzal Guru later disowned the confession and stated that he was forced to confess lies in front of the camera. The Supreme Court deemed it as inadmissible evidence. However, Afzal did not deny that he brought Mohammed to Delhi, but stated that he was forced to do so by Indian special forces (STF) from the state of Jammu and Kashmir.

In documents submitted to the court, Afzal Guru states that prior to the attack he was subjected to painful and degrading torture in an STF camp. Deputy superintendent Devinder Singh subsequently admitted to carrying out the torture, thus corroborating Afzal’s claim.

Afzal also claimed that he had met Tariq and Mohammed in the STF camps. Tariq—who had claimed to be working with STF—demanded that Afzal accompany Mohammed to Delhi and was threatened with severe consequences if he failed to comply. After having accompanied Mohammed to Delhi, he made his way back to Kashmir and was arrested two days after the attacks.

None of these documents and statements were openly challenged in court. However, superintendent Singh’s confession to torturing Afzal is proof of the fact that the STF had contact with him. This raises the question, how does a man who has been under surveillance by Kashmir’s STF so easily conspire in an operation to lay siege on the Indian Parliament?

“Shoddy and illegal investigations”
There is a growing list of contradictions within the investigation that was carried out and numerous faults were laid out in front of the trial court, High court and the Supreme Court, yet not one officer in the investigation was reprimanded. “The courts did not pass any strictures against the officers for their shoddy and illegal investigations,” says Nandita Haksar, Geelani’s lawyer.

Recently the Indian Government and media outlets have been attempting to extract his guilt from a letter—allegedly written by Afzal—that was published on Kashmir’s Urdu weekly, Qaumi Waqari, after his execution. Afzal sent the letter to the editor in 2008, in which he states that “the terror strike is no cause for shame, just as army troops who violate human rights in Kashmir are not apologetic for their action.” Despite appearing to condone the attacks never once in the letter does he admit to being involved in any way.

Many believe Afzal Guru was also denied a fair trial. He was designated a court-appointed lawyer, Neeraj Bansal, but the lawyer never once visited Afzal in jail, nor did he cross-examine prosecution witnesses or summon any witnesses for Guru’s defence.  Afzal raised this matter in court but his complaint fell on deaf ears. He had to wait for four years to get a lawyer of his choice, but this time he had to pay from his own pockets.

“Quite frankly, in my opinion and on the basis of the records, this man did not get a fair trial,” stated Afzal’s lawyer, Sushil Kumar in an interview with Newsxlive.

In 2002 the trial court sentenced Afzal Guru to death, and in 2005 his death sentence was upheld by the Supreme Court. When upholding the sentence, the Supreme Court admitted that the evidence against Afzal was purely circumstantial and there was no evidence of Afzal being associated with any militant group or organisations. Yet he was still given the death sentence on the basis that “the incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.”

The statement is a sad indictment of India’s rule of law where an elite few can craft their own idea of India’s collective conscience and pass judgement on how it can be soothed.

In this case, his guilt was not proven beyond reasonable doubt, but it seems that Afzal may have been made a scapegoat to satisfy the nation’s collective conscience. The precedent that the entire trial sets is that the principle “innocent until proven guilty” is an impractical idea in a situation where a nation lusts for somebody’s blood as retribution for a heinous crime.

India’s collective conscience may be satisfied now that Afzal is dead, but has India satisfied the conscience of Afzal’s wife, Tabassum, and his young Son, Ghalib, who were not even notified of his execution date until two days after the fact?