Why this secrecy over Afzal Guru’s execution?

Afzal Guru, one of the conspirators who plotted the terrorist attack on Parliament House on December 13, 2001, was executed on Saturday. Few tears will be shed for the man, except by those who share his twisted ideology or want to see the Indian state destroyed – for instance, Arundhati Roy. For most of us, Afzal Guru’s execution is no more than just deserts for a criminal who committed a crime with full knowledge of its consequences.

Nonetheless the execution has left me feeling uncomfortable for two reasons. First, and this is a point I had made when the butcher of Mumbai Ajmal Kasab was hanged, a legal execution should not be carried out in a hush-hush manner. Afzal Guru was given a fair and open trial. He was tried under the law of the land. He had access to legal advice. And, he was found guilty and sentenced to death after due process of law. All this is true for Ajmal Kasab too. Why, then, were these two men executed in absolute secrecy?

This is not to suggest that executions should be a public affair. Far from it; we shall leave that to countries like Saudi Arabia, China and dictatorships. In a democracy, it is expected of the Government to announce that a condemned convict’s mercy petition has been rejected and that the person will be executed on this date at that prison. It’s really about disclosure and transparency. Those States of the US which have retained the death penalty follow this rule diligently. They even allow the convict’s and the victim’s families to watch the execution though that borders on the macabre.

To claim that Ajmal Kasab and Afzal Guru were executed in secrecy for reasons of internal security is disingenuous and entirely spurious. There is nothing to prevent retaliatory violence after the execution is over and people are informed about it. My contention is simple: These executions were not extra-judicial killings. Hence there should have been no secrecy shrouding them. That only diminishes the authority of the state and the majesty of the law.

The second reason, and this is really why I oppose the death sentence as we have it in India, that makes me feel uncomfortable is the extraordinary discretionary power that vests with the judiciary and the executive in deciding who gets to meet the hangman and who does not.

Judges, especially of the Supreme Court, often reject the prosecution’s case for capital punishment to those who have committed heinous crimes by declaring them as not belonging to the category of ‘rarest of rare crimes’. There are no hard and fast rules to determine which crime can be classified as ‘rarest of rare’; it is left to the discretion of a judge or a bench. A man can be sentenced to death for committing one pre-meditated murder. Another man can get away with multiple pre-meditated murders.

Similarly, under Article 72 the President can commute the death sentence given to a criminal who files a mercy petition without disclosing the reasons why clemency has been shown to him. For example, during her last days in office President Pratibha Patil commuted the death sentence given to 35 convicts to life imprisonment. Those who received the presidential pardon were mass murderers, rapists who killed their victims and killers of children. Among the victims of these 35 criminals were 22 women and children, the most vulnerable members of our society.

It doesn’t stop there. We now have the strange example of the Tamil Nadu Assembly passing a resolution demanding that the three killers of Rajiv Gandhi should not be executed. The Government of Punjab has sought clemency for the assassin of a former Chief Minister of the State. Such misuse of political power is patently unacceptable.

Here is what I propose. If India must retain the death penalty for certain crimes, then it should be mandatory. There should be neither judicial nor political discretion in deciding who dies and who does not for committing a capital crime. If that is not possible, then India should do away with the death penalty. To retain it in the form we have at present is nothing short of a mockery of justice. That mockery must end.