Sunday, February 10, 2013

Justice Blind but is there a sane alternative???

Afzal Guru has two faces, depending on which side of the divide we stand. The bearded Muslim stereotyped terrorist, accused and found guilty of being a co-conspirator in a crime which in sheer magnitude if completed could have led to a cascading sequence of events potentially leading to the end to our existence. The other face is of a wronged Indian citizen treated harshly by a biased state. The logical end to a successful attack on Parliament would be nuclear conflagration leading to annihilation of large parts of our nations. This debate would then have been completely irrelevant for a law higher than the laws of the land would have run its course. However, destiny willed otherwise and the presence of mind of the security personnel and the collective karmas of our much maligned political class led to both nations surviving. While none of us seem to have learnt our lessons and we lurch for one disaster to another, today we need to ask the cliched question, Is justice blind? and more important is there an alternative?

While the famous blind folded lady with the scales of justice signifies a system whereby the judge is supposed to interpret the laws and give justice based on hard facts and evidence and turn a blind eye to any consideration based on emotion, personal belief prejudice or personal benefit. Judges are considered to be the repositories of wisdom, impartial detached and buddha like. While no one can claim infallibility, the endeavor is to minimize error. In built in the system is what we call in cricket, the benefit of doubt, where like the batsman is given the benefit, the accused is assumed innocent till without doubt he is found guilty. In the case of Afzal Guru and the Indian Muslim at large, often the Indian state has either out of sheer incompetence or inherent or acquired bias, routinely rounded up local suspects and using questionable means tried to "solve" the terror attack cases. It is a tribute to our courts and the secular polity of our nation that most of these have been exonerated. However, the due process of law has taken so much time that the best part of these persons lives have gone in jails and most of these persons come out frustrated and their plight has led to many citizens from the minority community feeling like second class unwanted persons in their motherland. Fortunately, as yet the Indian Muslim has realized that despite his frustrations against the state, terror has no place in his life.

Has Afzal Guru been given the benefit of doubt or is he a victim of an erroneous decision? Again the answer lies in the two faces of Afzal Guru. While in cricket the umpires decision is final, the founding fathers of our Constitution laid down guidelines for the use of the death penalty. It was to be exercised for the rarest of rare crimes and after all doubts have been laid to rest. In this case, there is no doubt that an attack on Parliament is an act of war and qualifies to be the rarest of rare crimes. However, Afzal Guru's confession was not admissible as evidence and his legal defense was by an reluctant and unwilling amicus curiae provided by the state. Even the judgement observed that the need to heal the wound inflicted on the collective consciousness of the nation was considered as a reason to decide the severity of the punishment. This to my mind seemed to be against the tenets of natural justice. Keeping such a possibility in mind our constitution wisely, gave the President of India the right to receive mercy petitions and a right to commute the death sentence. This power must be exercised by a wise and merciful state to try and reform a terrorist, much in the tradition of appealing the divine consciousness presence in all of us as ordained by our scriptures. Personally, I feel living on death row is like dying every single day and the incarceration of this man for almost 8 years is worse than death penalty.

The worst thing however, is the manner, timing and political opportunism displayed by our leaders. A persons life and death is not a trifling business. After so many years a state wakes up in an election year to become tough on terror of one kind, while conveniently ignoring crimes of similar magnitude including acts of terror involving assassination of a former PM and a serving CM. Both these crimes preceded the attack on Parliament. To believe that the Singh-Shinde duo with a pliant Pranabda, are leaders leading from the front, capable of decisiveness coming from a strong governance, is really laughable.

I hope civil society can now work towards abolition of death penalty on our statutes so that mercy petitions and clemency are rendered irrelevant and we move closer to reformation of the criminal and the ideal of hating the sin rather than the sinner.

Dr. Vispi Jokhi

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