Some fundamental debates of the modern era have crossed the barriers of academia and are widely discussed within people, the citizens, and an indicator of positive change. Academia’s responsibility then is to steer the debate, with their contributions, towards a productive end. The abortion debate among youth has garnered huge support for the pro-choice side, not just in the USA but also in other countries due to the intensity and wide public participation in the debate.

One issue that is rigorously debated within academia, but has not yet found a resonance among large sections is, however, the one on capital punishment. Capital Punishment is vocally supported by large sections some even going to the extent of supporting extra-judicial killings that do not follow any evidence gathering or due process. Police officers involved in such unlawful extra judicial acts are even felicitated by sections of (civil, sic) society. There is very little scope for discussion around the reasons why capital punishment should be opposed or not. It seems to be settled, in people’s minds, that capital punishment is absolutely justified. Moreover, people are even more hostile to the idea of discussion around this issue when there is a sensationalized incident covered in the media.
 

This too, is one of the reasons behind the hostility. The debates in the public sphere should not be undertaken during the hyper-charged moments of a sensational crime or even during a highly publicised instance of capital punishment. These discussions should take place at a relatively indifferent time, a time when people would be more willing to engage in discussion. This article is an effort in that direction.

There are some fundamental questions that need to be answered before going into the debate around Capital Punishment. The first question that needs to be asked is, if such punishment is a necessity? Punishment, in forms which will stop the crime from happening, is also reformative in nature. It is morally difficult for society to not embrace the idea of not having any punishment. There are various types of punishments, classified on the basis of what guides their implementation –retributive or reformative. Some punishments are geared towards reforming the criminal, some intend to assuage public anger by engaging in retribution etc and some intend to bring (restore) normalcy to the societal order.
 

The following are the theories of punishment, broadly classified:
 

1)      Retributive Theory of Punishment.

Law becomes a tool to punish the wrongdoer with the same sort of consequences for the crime they have committed. To summarise the whole theory would be ‘an eye for an eye.’ Different traces of this theory are found even within India’s criminal justice system.
 

2)      Reformative Theory of Punishment

This is a relatively modern theory of punishment in which the criminal is put through a process of reformation. The crime is understood as linked to the prevalent physical or emotional condition of the criminal as well as the society’s environment and circumstances. As a result, the criminal is regarded as a patient. Therefore, penalisation is not used to reclaim the offender and not to torture or harass them. This theory is yet to really influence the Indian Criminal Justice system but there are some elements of this used by some judges in petty cases.
 

3)      Deterrence Theory of Punishment

This theory has the most impact on the Criminal justice system in India. There are two elements to this system/approach. One is to deter the criminal from committing the act again and another is to deter other people from committing the same act.
 

4)      Preventive Theory of Punishment

In a way, preventive theory is a subset of the Deterrence Theory of Punishment. The Preventive Theory emphasises preventing the offender to repeat the act by disabling them from accessing society.

We have the premise that punishment is a necessary tool to maintain the societal order and the above theories are the tools to determine which approach should be followed. The idea of Capital Punishment stems from a mix of Preventive, Deterrence and Retributive theory.

1) Capital Punishment has the effect of preventing the person from committing the crime again or accessing society again – Preventive Theory;
 

2) It has, ideally, the effect of inducing fear of death into the minds of those outsiders who, in future, might commit the crime – Deterrence Theory;
 

3) It accords a sense of justice to the victim or their family for the pain they have been through -Retributive theory.

Let us first deal with the layers of the strongest argument the proponents of capital punishment can put forward. An introductory argument would be to say that capital punishment is given only in rarest of rare cases and therefore a comprehensive opposition to death penalty per se is not required. The second would be to say that these rarest of rare circumstances will not be any usual circumstances but of those of a vile and conscience shaking nature. And to not act in opposition to such acts or in opposition to the person who has committed such acts would not be justified. Thirdly, that the victim’s/family’s pain can be assuaged by nothing less than the punishment given to the criminal and to not punish the criminal in the appropriately proportional way would be to cause injustice to the victim.

Let us examine these arguments in support of Capital Punishment.

There is an inherent inconsistency within this seemingly coherent sum of arguments. One is that, if capital punishment is given in the rarest of rare cases, the issue of injustice to victims is prevalent in that paradigm too. If every victim is given proportionate justice, the rarest of rare cases principle does not stand. Moreover, there is no explanation from the proponents of Capital Punishment as to how the same principle of proportionate treatment is not given to other crimes. For example, if a person A amputates the arm of another person B, the punishment under IPC is not amputation but imprisonment. The proponents fail to explain how capital punishment is an exception.

There is a need to put up a case against the practice of Capital Punishment, irrespective of the contrary arguments. First, would be to make a case against the preventive theory of punishment. A crime, even a heinous crime, is not a product of a person alone but the product of the person and the circumstances they (he/she) are/is in. The act of ignoring the conditions a person was brought up in and the conditions they have been living in hinders the understanding of factors that contribute to the committing of the crime. To accord death penalty to a person would be to shake off the responsibility of state and society to create a society that acts as a prevention to enable circumstances that gave rise to the crime. Moreover, imprisonment can also be used to effectuate preventive theory rather than capital punishment.

The second arm of the case is to deal with the deterrence theory. There is much empirical evidence from the countries that abolished capital punishment stating that the abolishment of capital punishment has little effect on the number of crimes which would otherwise attract capital punishment.^[1] To state plainly, crimes will barely increase if capital punishment is abolished. Moreover, the consistent evidence is that fear of being apprehended by the police and the certainty of punishment acts as a deterrent rather than the intensity of the punishment.^[2] Additionally, that part of the deterrence theory which seeks to deter future offenders from committing the same crime by giving stringent punishment to an offender – this does not have the element of fairness. A criminal should only be responsible for the act they have committed but not for the actions others in future might commit. If such holistic responsibility is to be awarded, then government and society also needs to take the responsibility for creating the circumstances for the crime.

This brings us to the final arm of our case, the one against the Retribution Element in capital punishment. Crime is a wrong committed against society and in some cases, wrong committed against the person too. The state has come to represent the victim against the criminal and the reason for this is that when a crime is committed, the powerful prevail over the powerless. Whether it is a robbery, a kidnapping or other such crimes. And to aid the powerless and to make sure that morality of society is not harmed, society takes it up via the government. This is not to say that the victim is of no consequence in the proceedings. They should have an importance and their interests too should be kept in mind. However, if society is the only one that takes on the burden of prosecution, there is no retribution for society to attend to. It cannot be a vehicle for private retribution. It should be understood as if the victim is transferring their right to the state to prosecute someone while being empowered to actively participate in the proceedings. If such understanding is absent, it would allow for an element of victim’s own justice to creep into the public criminal justice system. The Victim’s lawyer under Indian law does have the right to assist the public prosecutor and these liberties have been given to balance the issues that might arise due to the collusion of state authorities with powerful perpetrators (accused) etc.^[3] However, these rights will not go away if capital punishment is abolished. Victims will have their rights but with the caveat that the punishment will not be the death penalty.

Simply put, there is no clear rationale for retribution to be the result of proceedings for two reasons. The first one is that the state is the main prosecutor which does not –or should not–have anything to retribution. The second reason is that, there is no reason to attribute proportional retribution – eye for an eye, life for a life- paradigm only for murder and not for other offences. For instance, how the offence of grievous hurt does not (or should not) attract retribution since such retribution would be medieval – having no place in democracy, death penalty too has no place in a democracy which values the social contract and rights of people.

Conclusion

Recently, a three-judge bench of the Supreme Court of India referred a case to the five judge Constitution bench  for providing guidelines on how the accused can present their version of mitigating circumstances to defend themselves against capital punishment before the trial court. The Supreme Court has stood by the rarest of rare doctrine as propounded in the Bachhan Singh’s case and the imposition of death penalty is normally done very cautiously. The Right to Life is the most precious right that flows not just from the constitution but from the values of the civilisation itself. As civilisations’ move forward, some rights like the right to live will have to become absolute to provide stability to humanity and its quest to build relations within. The way forward however is to have discussions on this issue not just in academic spaces but with the people.
 

Only then, will the campaign against capital punishment bear any fruit. 

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The death of Father Stan Swamy in custody is a reminder of how India’s criminal justice system has collapsed and is being used by the party in power to criminalise the activists, writers, dissenters and political opponents. One need not to look far, but the sequence of events since 2014, after the Narendra Modi government took power. Right from NGOs, civil society organisations, human rights organisations and activists were targeted in the ‘first phase’ which perhaps went unnoticed as most of the people were fighting for the rights of the most marginalised, such as Dalits and Adivasis. Issues of Dalits and Adivasis never get cover stories or front-page new items followed for several days, unless and until you project the ruling party as the ‘champion’ of their cause and the policies initiated by the government useful for them.

Look at the silence of the media today. No one is questioning the unaccountability of these agencies who can make and unmake people criminals, according to their convenience. 

Father Stan Swamy was a pious man, working for the rights of Adivasis in Jharkhand. A man who was born and raised in Trichy, Tamil Nadu and later worked in Bangalore, but his heart was always with the Adivasis. He loved them and stood for their rights. Imagine a person who hailed from an entirely different region with a different language and cultural background, and became one of the most respected social activists of the area. He was director of Indian Social Institute, Banglore between 1975-1986, and would have enjoyed his retired life anywhere in the South but his convictions brought him to Ranchi where he created an institution named as ‘Bagaicha’ or garden. A visit to Bagaicha will show you why the Adivasis loved and respected him so much. At the place, you will find beautiful statues of Adivasi heroes such as Birsa Munda and others. There is a martyr memorial upon which names of all Adivasis who were killed protecting their rights, are inscripted. Perhaps, the ‘power’ is always afraid of people on the margin, knowing their history and power.

Father Stan Swamy hailed from Trichy where he was born on April 26, 1937. He was a Jesuit priest and hence could never think of even preaching violence to his followers. I do not claim to know him personally, though I interviewed him and knew him through his work. Whenever, we wanted any one from Jharkhand to speak on the issues of Adivasis, Father Stan Swamy would be the first choice. He had such a gentle and soft voice that nobody can ever think that he would be supporting ‘insurgency’. Why should Adivasis be seen as ‘insurgent’ in their own land? The Pathalgarhi movement was Adivasis’ quest  to protect their land. It is ironic that thugs and mercenaries who are just looking at the Adivasi spaces through their greedy eyes, are terming the issue of rights of Adivasis as unconstitutional. The historical struggle launched by the legendary Birsa Munda, Tilaka Majhi, Siddho-Kanho brothers in the entire Jharkhand region was about nothing but protecting their land and forests from the ‘dikkus’ i.e. outsiders. Rather than introspecting, the previous government in Jharkhand was on a marketing spree, capturing Adivasi land and making them homeless in their own land.

When I spoke to Father Stan Swamy a few years ago, he was absolutely confident that nothing would happen to him as he was only fighting his battle non-violently and democratically. The biggest irony is that a man dedicated to peace and non violence was charged for ‘spreading’ violence at a place which has nothing to do with him. Bhima Koregaon is the place Dalits have been visiting for years to celebrate the victory day of the Mahar forces over the Peshwas. The incident of January 1, 2018 violence in Bhima Koregaon was actually the game of those who have been afraid of the Dalits and their assertion. The massive mobilisation of Dalits at Bhima Koregaon happened spontaneously, but the state of Maharashtra under a Brahmanical Devendra Fadnavis realised that an increasingly assertive Ambedkarite would be a threat to their unquestioned apparatus, and hence violence was unleashed by those who were afraid of the rising Ambedkarite assertion. But what happened later, was the typical modus operandi of the Sangh Parivar led administration. The goons who unleashed violence in Bhima Koregaon and other places got protection from Maharashtra Police which filed a case against activists for organising the Elgar Parishad, claiming that the meeting was sponsored by Maoists. This was a deliberate attempt to discourage people from coming to Bhima Koregaon. Slowly, Maharashtra police filed cases against numerous intellectuals and activists and arrested them. Later, this case was transferred to the National Investigation Agency (NIA). All those who have been arrested under fabricated charges or cooked up stories are well known activists, authors and intellectuals. They have been working on the ground and most of them are above 65 years of age. 

Father Stan Swamy was arrested on October 8, 2020, by NIA and slapped with UAPA charges. His office was raided several times but nothing incriminating was found against him. He was 84 years of age, suffering from Parkinson’s Disease and Maharashtra Police wanted him to come to Mumbai for investigation, which he requested to be done at his place. Everything was rejected, Father Stan Swamy was arrested at Ranchi and brought to Mumbai and lodged in Taloja jail. At the time when Covid-19 cases were on the rise, the government should have been careful enough to think of not filling the jails with political prisoners, but it did not bother. Attempts were made by his lawyers to convince the courts to grant him bail at least on health grounds, but shockingly the courts were not ready to ‘ignore’ NIA lawyers who were vehemently opposing the bail. It is surprising that Varavara Rao was granted bail after many hearings, and attempts were made to convince him too that he would be provided medical care, but he was ultimately released on bail after many days. It is surprising that those ‘laws’ which granted bail to Varavara Rao were not made ‘applicable’ on Father Stan Swamy.

On October 23, 2020, the court rejected his bail plea. On November 6, his lawyers filed a request to provide him with straw and sipper as he was unable to hold a cup or glass on his own. NIA responded to this after 20 days. After much persuasion he was provided the same. Justice Madan B Lokur in his brilliantly articulated piece in the The Wire says, “ This application was dealt with great insensitivity. First, the prosecution sought time to file a reply. Was it necessary?  Could a straw and sipper not have been provided to Stan Swamy? Then, even more surprisingly, the learned judge granted 20 days to the prosecution to file a reply! This was simply amazing. Frankly, if the prison system had been compassionate and humane, it would not have been necessary for Stan Swamy to approach the Trial Court for something as simple as a straw. Ultimately, as a great favour, the powers that be supplied Stan Swamy a sipper. Small mercies! A classic case of strumming his pain with their fingers”

(https://thewire.in/law/killing-him-softly-with-his-song-a-requiem-for-father-stan-swamy)

Father Stan Swamy is a ‘free’ man now. Indian state can’t do anything. It has exposed itself to the international community that our institutions are not merely collapsing, but also compromised. We used to say that for a stronger and healthier democracy, people need independent media and judiciary as both become the watch dog at the time when ‘powers’ are intoxicated. But unfortunately in India, both have deeply disappointed right-thinking people.

The courts these days are allegedly not questioning the narrative of the probing agencies. Judges are transferred if they take an independent position and the case of Justice Muralidhar is an example. Media is part of the conspiracy, and never has the media become a bigger threat to democracy as it has become today. It legitimised the narrative being built up by the ruling party through the probe agencies. Courts were unable to pull up the agencies for their delay or failure to probe even after two or three years. People are incarcerated in jail, suffering in silence and facing threat to their lives in this age of Covid 19 and yet there are no questions asked.

These are difficult times for all of us. Father Stan Swamy was martyred for a cause. He did not compromise his principles and continued with them. He led a life which we all are proud of. He had a sensible voice. If saner voices who speak of unity of the country, constitutional power and rights of the marginalised, are being made criminals by the government agencies, then the future of the country is bleak. Our Constitution is already torn. Journalists like Siddique Kappan are in jail for reporting a case. Courts are unable to ask serious questions or take the political leadership to task.

The question is whether the judiciary will act on it. Whether there will be an introspection, that enough is enough, and our institutions need to assert their independence and autonomy. Protect the rights of the human rights defenders and allow them to breathe. None of them will speak for violence and hatred. These are critical moments for all. The only thing is whether our courts will now realise that enough is enough, it is time to act and seek accountability from the executive.

Father Stan Swamy will now be part of folklore in Jharkhand. His dedication and conviction will remind us to stand tall on the face of a fascist regime. Speak truth to the power. It is bitter. It can take our life but ultimately it will give life to the lifeless suffering due to despondency of the political leadership in the country.

It is time for our judiciary, our civil services and media to ponder over seriously as to whether such laws should not be scrutinised or whether these laws are violating the constitutional principles or international treaties and covenants that we claim proudly part of. Civil society is speaking but it has been harassed, humiliated and violated to the maximum, as if that was the first task of the government for the country.

One may or may not agree with the political views of any ‘accused’, but nobody would say that they are Naxals or operating against the Constitution of India. For that matter even Naxals or Pakistanis or anti-nationals will have to face the same law. Nobody in any society and country can be prosecuted without being given a fair chance to prove his or her innocence. UAPA law actually violates this basic premise of the law. Now, the accused have to prove themselves innocent. Moreover, the procedures are such, that if you are over 60 years of age or ailing, then it is ‘capital punishment’ without trial or final judgement. In the times of Covid, our authorities, whether judicial or police, should have been more sensitive. Of course, the biggest offender in this is the political leadership which shamelessly builds up the vicious narrative through their ‘propaganda’ machinery.  

Father Stan Swamy fell to this insensitive regime because he spoke the truth and stood tall. We don’t know whether those who selectively and in a well planned and calculated manner criminalised the respected intellectuals, authors and activists, will ever do any introspection or show remorse. It never happened when Graham Staines and his two children were burnt in their vehicle. Till date, they defend the goons and thugs who were engaged in the heinous crime, and I am sure they won’t retreat. They ll bring ‘new evidence’ to further justify their criminal act. But we hope people of the country would definitely feel the pain and anguish of an 84-year-old man who was denied basic dignity and human rights in jail. 

It happened to Father Stan Swamy and it could happen to anyone who the regime feels is against their political ideology. Yet in all the big democracies, it is the institutions who have to show strength and stand up to the lawlessness of the State. With one judgement, Justice H R Khanna became immortal in the legal parleys, though there have been many chief justices and other judges after him but whenever the country remembers of human rights, civil liberties, Justice Khanna’s name is taken with great reverence.

Let us see how our ‘system’ moves after they have killed an innocent man without trial.

A big salute to Father Stan Swamy.

*Views expressed are the author’s own.

Other pieces by Vidya Bhushan Rawat: 

India needs to reject the ‘politics of ‘brand’ 

Oratory comes with conviction 

Stop mindless concretisation ‘projects’ in Uttarakhand

The post Capital Punishment without trial appeared first on SabrangIndia.

According to Reuters report, an Egyptian kangaroo court sentenced 75 people to death on Saturday (Sept 8) including prominent opposition leaders Essam al-Erian and Mohamed Beltagi over a 2013 sit-in which ended with killing hundreds of protesters by the Egyptian security force.
The sentencing, which included jail terms for more than 600 others, concluded a mass trial of people accused of murder and inciting violence during the pro-Muslim Brotherhood protest at Rabaa Adawiya square in Cairo in 2013.

Rights groups say more than 800 protesters died in the single most deadly incident during the unrest that followed Egypt’s 2011 popular uprising against longtime President Hosni Mubarak.

Death sentences have been handed down to hundreds of Al-Sisi’s political opponents on charges such as belonging to an illegal organization or planning to carry out an attack.

The protest occurred weeks after General Abdul Fattah Al-Sisi (who later assumed the title of Field Marshal) ousted Egypt’s first freely elected head of state, president Mohamed Mursi.

“We condemn today’s verdict in the strongest terms,” Amnesty International said in a statement. “The fact that not a single police officer has been brought to account.. shows what a mockery of justice this trial was.”

Amnesty International and Human Rights Watch have both described the situation in Egypt as the worst human rights crisis in the country in decades, with the state systematically using torture, arbitrary arrests and enforced disappearances to silence political dissent.

Last year, the Egyptian government pledged to take action against Human Rights Watch after it released a damning report on state torture.

Two parliamentary groups in Algeria have called for official national and international action to halt mass executions against activists, human rights workers and political figures in Egypt.

Movement of Society for Peace; the largest political party in Algeria and Union for Development, Justice and Building said in a joint statement that lawmakers “are following with great concern the developments of the human rights situation in the Arab world; the most recent of which was the issuance of mass death sentences against political, human rights and community symbols”.

The signatories described the executions as “a flagrant attack on the right to life”, which is politically motivated “amounting to genocide or mass murder according to international law”.

UN Human Rights chief urges Egypt to overturn mass death sentences
United Nations human rights chief Michelle Bachelet has urged Egypt’s appeals court to overturn mass death sentences handed down by a lower court after what she said was an “unfair trial”.

The former Chilean president, who took office as UN High Commissioner for Human Rights earlier this month, criticised a law giving immunity from future prosecution to senior military officers.

An Egyptian court on Saturday delivered death sentences to 75 people, including prominent Islamist leaders Essam al-Erian and Mohamed Beltagi, over a 2013 sit-in that ended with security forces killing hundreds of protesters.If carried out, the sentences “would represent a gross and irreversible miscarriage of justice”, Bachelet said in a statement.

Defendants were denied the right to individual lawyers and to present evidence, while “the prosecution did not provide sufficient evidence to prove individual guilt”, she said.

“I hope that the Egyptian Court of Appeal will review this verdict and ensure that international standards of justice are respected by setting it aside,” Bachelet said.

Bachelet decried the “lethal military crackdown” saying it had led to the killing of “up to 900 mostly unarmed protesters by members of the Egyptian security forces”. The government later claimed that many protesters had been armed and that a number of police were killed, she added.
“Despite the huge death toll, no State security personnel have ever been charged in relation to the so-called ‘Rabaa massacre’,” Bachelet said.

Tellingly, a law was passed in July gives Field Marshal al-Sisi the right to name officers who are eligible for immunity from investigation of offences alleged to have been committed while Egypt’s constitution was suspended between President Mursi’s overthrow on July 3, 2013, and the reconvening of parliament on January 10, 2016.

Not surprisingly, US Secretary of State Mike Pompeo has authorised the release of $1.2 billion in military aid to Egypt, overriding previous human rights concerns that had held up funding.

“Strengthened security cooperation with Egypt is important to US national security. Secretary Pompeo determined that continuing with the obligation and expenditure of these foreign military financing (FMF), funds is important to strengthening our security cooperation with Egypt,” the State Department said in a statement.

Abdus Sattar Ghazali is the chief editor of the Journal of America (www.journalofamerica.net) email: asghazali2011 (@) gmail.com
 

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The focus this year is on ‘terrorism’ and whether the death penalty is actually a deterrent to an act of terrorism.

A handout by the Coalition states that: “Since the 1980’s, there has been a global trend towards abolition of the death penalty which continues to this day. Today two-thirds of countries (140) are now abolitionist in law or in practice. However, despite this global trend towards abolition, many governments have in recent years resorted to use of the death penalty following terrorist attacks on their countries, in the name of protecting their countries and peoples.”

India has the dubious distinction of being among those countries like Bangladesh, Pakistan and Nigeria that have adopted laws that expanded the scope of the death penalty, adding certain terrorist acts to the list of crimes punishable by death.

The Coalition says this of India: “The death penalty for terrorism can be imposed under authority of the Terrorist and Disruptive Activities (Prevention) Act passed in 1987 (amended in 1993), and in the Prevention of Terrorism Act passed in 2002. India has executed people for crimes related to terrorism on several occasions: the only survivor among those responsible for the attacks in Mumbai in 2008 was executed in 2012 and the man sentenced for planning the attack in December 2001 against the Indian Parliament, causing nine deaths, was executed in 2013.

In July 2015, India carried out the execution of Yakub Abdul Razak Memon, who was sentenced for participating in implementing several bomb attacks which caused 257 casualties in Mumbai in March 1993. This man had been sentenced to death in 2007 under the Terrorist and Disruptive Activities (Prevention) Act which does not conform to the principles of international law relating to fair trials, particularly in terms of arbitrary detention, torture and obtaining evidence, and all legal avenues have been rejected since then. In August 2015, the Law Commission of India, the executive body charged with reforming the law, recommended abolition of the death penalty, except for offences related to terrorism and any offences which attack the State.”

The Coalition has been very vigorous in its campaign against the death penalty. It cites ten major reasons to end the use of the death penalty, the first one being that ‘No State should have the power to take a person’s life’.

The World Congress against the Death Penalty held at Oslo, Norway in June this year underlined the necessity to take further significant steps towards the complete and universal abolition of the death penalty.

In a message to the Congress Pope Francis also called for a world “free of the death penalty.” He said “the practice brings no justice to victims, but instead fosters vengeance. Indeed, nowadays the death penalty is unacceptable, however grave the crime of the convicted person. It is an offence to the inviolability of life and to the dignity of the human person; it likewise contradicts God’s plan for individuals and society, and his merciful justice.”

When Yakub Memon was executed in July 2015, several Indians were very vocal in their protest, highlighting that the cause of justice was not served. Of course, the flag-bearers of the death penalty (and these are very selective on ‘who’ should be given capital punishment), were quick at branding those who felt that Memon’s execution was not justified, as “anti-national” and “anti-patriotic”.

The proponents of the death penalty seem oblivious of the fact that ‘execution is a terrorist’s tool’. One only legitimatises the heinous act of a terrorist with the death penalty. The cycle of violence has to stop! Capital punishment is a barbaric act. No civilised country should even think of having it!

On this day, we need to recommit ourselves to do all we can for the abolition of the death penalty!

(Fr Cedric Prakash sj is an Indian Jesuit priest and a human rights activist. He is currently based in Lebanon and engaged with the Jesuit Refugee Service (JRS) in the Middle East on advocacy and communications. He can be contacted on cedricprakash@gmail.com).
 

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This question assumes acute relevance after recent events at the Jawaharlal Nehru University (JNU). A meeting called to mark the anniversary of the hanging of Afzal Guru by another group has led to the JNU Students' Union President Kanhaiya Kumar being arrested on charges of sedition.
 
Afzal Guru was hanged for his role in the 2001 Parliament attack case. While pronouncing sentence, the Supreme Court of India admitted that there was no evidence to show that Afzal Guru was a member of any banned organisation nor had any of the 80 prosecution witnesses said that Afzal was associated with any terrorist organisation.
 
The judgement states, 'The incident which resulted in heavy casualties, has shaken the entire nation and the collective conscience of the society will be satisfied (only) if the capital punishment is awarded to the offender.'   We have to ask ourselves whether this kind of ‘satisfaction of the collective conscience’ can be a reason enough for ending somebody's life, in a civilised society?
 
Are there not to be even questions raised over this judgement? It would be a disservice to Indian democracy if we all assume the collective guilt of an unquestioning silence.
 
Afzal Guru did not receive a fair trial. He was not allowed to have a lawyer of his choice. Neither did the court hear his version. He was made to accept his crime under duress and threat by the police. Simply put, he was made a scapegoat.
 
The truth is, if he had not been hanged, a ‘feeling’ would have prevailed that India was or is not able to take strong action against the perpetrators of the attack on Parliament (2001). Somebody needed to be hanged and it was the misfortune of Afzal Guru that he was the most vulnerable among the four who were made the accused in the Parliament attack case.
 
The then Chief Minister of Jammu and Kashmir, Omar Abdullah had sharply criticised the execution of Afzal Guru, saying clearly that it would reinforce the sense of alienation and injustice among Kashmiri youth. He asserted that the decision to hang Afzal Guru was more political than legal. It is this doubt over Afzal's hanging that persists even three years after his hanging. That is the reason why for some persons, he is even called a martyr.

There are people associated with Rashtriya Swayamsevak Sangh (RSS) who would like to eulogise Nathuram Godse. Some even want to build a temple in his name. For those who would like to worship Nathuram as a hero, there can be no objections to others who consider Afzal Guru a martyr.
 
The NDA II regime has already termed the event(s) on JNU campus (having such a meeting to discuss the execution) as anti-national as there were some objectionable slogans raised.  It is time we asked some hard questions.  What will be considered to be more anti-national — ideologically motivated and uncritical defence of the hanging of a person whose crime was not conclusively proved or merely raising pro-Kashmiri and pro-Azadi slogans? It is this simmering sense of injustice done in the case of Afzal Guru (his hanging) that is reverberating in the form of slogans which (this time) happened to be raised at the JNU meeting.
 
It remains important to question the hanging of Afzal Guru so that no more such incidents occur in future.  
 
The right to free speech is under threat within Indian democracy today. The threat is posed from communal fascist forces. There are people associated with the Rashtriya Swayamsevak Sangh (RSS) who would like to eulogise Nathuram Godse. Some even want to build a temple in his name. For those who would like to worship Nathuram as a hero, there can be no objections to others who consider Afzal Guru a martyr.
 
The authorities are also suggesting that the permission for the event was withdrawn just before it was to take place. This is a time-tested tactic. A similar thing happened when a reputed journalist was recently invited to speak at Allahabad University on invitation of the Allahabad University Students' Union President Richa Singh on January 20, 2016. The Vice Chancellor there also withdrew the permission at the last moment.
 
I would like to ask a question to the current ruling dispensation and their aggressive champions. Those who have made it their business to assume sole defence of ‘nationalism’, the torch bearers of desh bhakti.  Did they take any permission to demolish the Babri Masjid in 1992, an incident that remains a blot on our constitutional, secular ethos and which has, forever and seriously, compromised India's internal security?
 
Or, (did they seek permission) before they killed Mahatma Gandhi? Or, when they allegedly carried out bomb blasts twice in Malegaon (2006, 2008), in Hyderabad (Mecca Masjid Blasts, May 18, 2007), then in Ajmer (October 10, 2007) and in the Samjhauta Express (February 18, 2007)?
 
Or, did the NDA I government led by Prime Minister, Atal Bihari Vajpayee at the centre take even their own Defence Minister (George Fernandes) into confidence, not to mention Parliament, before testing nuclear weapons in 1998, an act which adversely affected and worsened South Asia's security environment?
 
For those associated with the Rashtriya Swayamsewak Sangh (RSS) who believe, that by being in the seat of government, they have un-checked, arbitrary powers which includes dictating what others should or should not do; preventing ‘others’, even violently, from carrying out their activities, the next elections will surely bring a rude shock. The people in this country have never tolerated tyrannical ways. Hitler may be a hero for the RSS but he is not for the masses in India.
 
The treatment meted out to journalists and JNU students and professors at the Patiala House court yesterday, on February 15, 2016, by lawyers associated with the RSS, is shameful. If the violence resorted to by terrorists and naxalites is condemnable how can the police and the ‘nation’ stand spectator to hooliganism indulged in by the Sangh parivar members? No other mainstream political organisation(s) exhibit the kind of lawlessness that organisations associated with this supremacist right wing ideology do.
 
They and their ideological associates have allegedly committed serious crimes; like murders of Dabholkar, Pansare and Kalburgi and have facilitated an atmosphere within which Rohith Vemula was forced to commit suicide, in addition to innumerable incidents when they are guilty of threatening and intimidating actions against people who simply do not agree with their ideology. This nonsense should not be tolerated in a democracy even if a price has to be paid for it. The RSS is hurtling this country towards a state of emergency which can only lead to civil war and anarchy.
 
The people who brought BJP to power with a thumping majority in 2014 must rethink their support and mandate. Is this party that is even fit to rule for five years?  Stalwart socialist leader Dr. Ram Manohar Lohia once famously said that “Live communities don't wait for five years” (the term of Parliament).  Today, these sharp and sagacious words must show us the way.
 
(Sandeep Pandey, a Magsaysay awardee for emergent leadership has trained in Mechanical Engineering but has been working on social justice issues; he is co-founder of Aasha)

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