Published On: Mon, Feb 18th, 2013

Communal Rage in Secular India

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By Dr. Syed Nazir Gilani –

Law is institutional normative order. Institutions have walls, sometimes literal, sometimes figurative – that keep things out. Unfortunately in the case of Afzal Guru, the judiciary seems to have given in to a narrative alignment and it has caused a shift in the ordinary course of law.

The first apparent evidence that there has been a ‘narrative alignment’ is when the court expressed itself that “the collective conscience of the (sic) society will only be satisfied if the (sic) capital punishment is awarded to the offender”. The judge may be disappointed to find that the ‘collective conscience of the society’ in India is divided on Guru’s manner of execution. There is a sharp division and over 200 Indian civil society members and several groups have submitted a petition to President Pranab Mukherjee expressing anguish, despair and outrage for the secret execution. The collective conscience in the Valley is badly hurt. It  has endured a collective punishment of remaining under Curfew and restraints for a full week.

The question that stares us in the eyes is as to whether we have started witnessing ‘communal rage in secular India’?

Political reaction from main stream political parties, Hurriyat factions, groups outside Hurriyat and mainstream has been one of anger. It is a deeply felt anger and no opinion would risk to be on the wrong side of the public sentiment. Guru’s execution has resulted into a blame game. Main stream political parties, NC in particular has been accused of collaborating in the execution. PDP has come out with a full blooded attack on NC and Congress has not said much about it. It is said that execution may have been averted if the chief minister had taken a more pro-active role. Jammu and Kashmir Legislative assembly remained averse to any interest in the matter and a resolution tabled by independent member Engineer Rashid was shouted down on the floor.

National Conference has hit back and seems to have a strong case in its reaction. It has challenged Hurriyat and Kashmir Bar for their non interest in Afzal Gurus case until his fate was sealed by the Supreme Court. The failure of Hurriyat and Kashmir Bar can’t be ignored. The former could have offered financial support and the latter could have steeled a legal defence. The NC argument has a merit and it appeals the common sense. Post execution interest is mere politics and has no merit.

Supreme Court of India has treated the attack on Parliament as ‘rarest of rare’ cases. Hurriyat and Kashmir Bar in particular and the common man and woman in general regard Guru a victim of miscarriage of justice. He has been declared a martyr and all evidence leads to this end. Prayers for the departed soul have been held in J & K, various parts of India, AJK, Pakistan, UK, USA and in various parts of the world.

The post execution interest raises a basic question in regards to Hurriyat, Kashmir Bar and general obligation towards Afzal Guru and his family during the full regime of his hearing in Delhi. He seems to have been left alone and the judiciary did not see it proper to ensure a defence of his choice. Kashmir Bar has abysmally failed on the professional front. Once part of Hurriyat, its collective wisdom has been suffering from ad hoc reflexes. It has yet to surge from its prejudices and street protests. Kashmir Bar has argued that it could not represent Afzal Guru for want of security in Delhi and also for not being approached by the family. A professional body of lawyers in a conflict zone can’t be believed on these reasons.

I have seen French lawyer Etiene Jaudel travel to Pakistan and observe the Bhutto trial in the Supreme Court of Pakistan in 1978. He was harassed by Martial Law regime and abused by the Pakistani lawyers who were holding the secret brief for General Zia or were genuinely swayed by an anti-Bhutto sentiment. Mark Tully and I would feel sorry for Etiene Jaudel. He returned to Pakistan in April 1993 as part of a four member international delegation sponsored by JKCHR to see the Kashmiri refugees in camps in various parts of AJK and to our surprise he pointed out at the Supreme Court Lawyers function that he finds a sea change in the professional character of Pakistani lawyers to what he found in 1978. It is interesting to note that Kashmir Bar has earned a rebuke of National Conference which has alleged that High Court Bar Association (HCBA) was trying to absolve itself of its “complicity” in the death of Afzal Guru. Therefore, the two reasons offered by Kashmir Bar for not being able to assist Afzal Guru do not hold any merit.

Guru’s execution has been described by a wider section of people in India, all in J & K, all in AJK, all in Pakistan and Kashmiri Diaspora as miscarriage of justice. It has split the main stream politics in J & K. There is no argument about the fact that Guru’s guilt ‘beyond reasonable doubt’ was not proved for an execution and that a further recourse after the rejection of mercy petition was frustrated. There was an unfortunate alignment in the narrative and a shift in the ordinary course of law.

Communal rage in a secular India seems to have been whipped following the execution. The air waves of TV Channels and talk shows in India fumed with unreasonableness. All of a sudden guns were aimed at JLKLF chairman Yasin Malik, who is on a private visit to see his family in Pakistan. Indian media wearing its night vision goggles saw Hafiz Sayeed visiting Yasin  Malik during his  24 hour hunger strike in Islamabad. All hell broke loose against Yasin Malik and no one seemed to consider the fact that Malik could not stand at guard to monitor the people who were visiting the open tent out of their own free choice. It would have been a charged atmosphere and every expression of sympathy and solidarity had its own dignity.

A wrangle by the Indian media with Yasin Malik across the border on the question of his meeting with Hafiz Sayeed did not go well with the sense of grief expressed by many around the world. Malik remained on a moral high ground when he defended his non-violent manner of protest. He had a strong point to fight back and say that his four hour long planned meeting with Hafiz Sayeed in 2006 was fully endorsed by the establishment in India and how come a chance drop in by  Hafiz Sayeed February in 2013 could be so offensive, that all were out to knife him.  It is open to common sense that a non-violent peaceful protest at a public place could attract anyone and it would not be considered appropriate for anyone to discriminate on the basis of any political, religious or other social reason. Hafiz Sayeed is a Pakistani citizen and he could not be restrained in any manner, unless the law of the land has a reason to interfere.

Delhi may have a myriad more reasons to justify its decision to execute Guru in the manner seen unmannerly by many in India, J&K, AJK, Pakistan and the Diaspora. There are many variables which ought to have been given due regard by the system. Guru has been taken out of the queue and there has been a serious violation of ‘genuine expectations’ which had accrued over the years. He was a Kashmiri Muslim and had continued to cry foul during the course of his hearing. Prosecution had not proved its case beyond a reasonable doubt which could warrant a death sentence. Police evidence in the same case had failed against some others and there had been acquittals. Confessions made by Guru had also been thrown out by the Supreme Court.

Guru has not received a fair trial in his life and has been treated unfairly even in death. It is time that there is a serious introspection into the fact, why a medical student, turned a militant and who were  the people who did not allow him to settle down in peace, after he had given up the use of a gun. The system in Delhi and J&K Government have a duty to revisit the case and if there is a miscarriage of justice, Guru’s wife and child need to be looked after as a State responsibility. All those who cry hoarse and are shedding tears need to reflect back on their failures when Guru needed them most.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He could be reached on email

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