Introspecting Aloud

The correct and relevant context within the Supreme Court judgement on Afzal Guru's death sentence

For a long time, I have been reading articles from various sources (and not just Arundhati Roy's) about how Afzal Guru's death sentence given by Supreme Court of India was a gross miscarriage of justice. This newspaper article is an example,

Defending Afzal Guru, Arundhati Roy said that the Supreme Court’s ruling which says that Afzal Guru must be hanged ‘to satisfy the collective will of the nation’ although there is no proof of his involvement is in itself unconstitutional.

Being a person who has always been against capital punishment, I fell an easy prey to the argument made by these people. Obviously, when you read that statement, you would agree that it does smell like something really wrong has happened.

Nothing could be further from the truth.

The supreme court judgement is here.

And here is the relevant context, which gives the correct context to the text Arundhati is quoting. But with the proper context you will see that she has been very "convenient" while choosing the excerpt. The Supreme Court, as always, had done an awesome job, to my untrained eyes.

The conspiracy to commit the offence of murder in the course of execution of conspiracy is well within the scope of conspiracy to which the accused Afzal was a party. Therefore, he is liable to be punished under Section 120B read with Section 302 IPC. The punishment applicable is the one prescribed under Section 109 IPC in view of the phraseology of Section 120B "be punished in the same manner as if he had abetted such offence". Section 109 IPC lays down that "if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, a person abetting the offence shall be punished with the punishment provided for the offence." Thus the conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment prescribed under Section 302 IPC. Either death sentence or imprisonment for life is the punishment prescribed under Section 302 IPC.

In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial Court and the High Court. The present case, which has no parallel in the history of Indian Republic, presents us in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples' representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity. It is a classic example of rarest of rare cases.

The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the Government as well as disrupting normal life of the people of India is some thing which cannot be described in words. The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this treacherous act. The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence.

After a reading of the judgement, some points are very clear to me:

1. There were several very strong circumstancial evidence of a close link between the dead terrorists and Afzal. Here is one of them from the judgement:
   

   The picture that emerges is this: The fact that an instrument used by Afzal (with the phone number 9811489429) till 12.12.2001 was recovered from one of the deceased terrorists on the date of incident, reveals that Afzal would have necessarily met the deceased terrorist between the afternoon of 12th December and the morning of 13th December.

2. The police did a horrific job of investigation. Being under terrible work pressure is no excuse for causing a person's miscarriage of justice where the punishment is death. It is evident that police had some facts, but didn't spend enough effort connecting all of them. To make shortcuts, they violated procedures as pointed out by the court. They probably also coerced or forged confessions. Most of the problems people have with this judgement was the shoddy investigative work that the courts had to rely upon.
3. Afzal Guru had quite some problem getting good representation. However, I do see Ram Jethmalani having given a good defense to the defendants. A country which claims to be a fair democratic country should always see that the most rotten of defendants get the right support to defend themselves. This is because there is a tremendous amount of pressure and prejudice against the defendants already before the trial starts. To have even a sense of fair play, the defense should be such which can take on such an unfair environment. I salute Ram Jethmalani for always having done this for the country. Very few people of his kind exist in this country.
4. If one has an issue about why Afzal is being given the same punishment as the people who actually committed the crime, please read the judgement. The relevant part is in the excerpt above. This is the law in this country. The court just followed it.

But at the end of the day, my faith in our judiciary is restored. I don't see a miscarriage of justice from what I have read.

Now whether capital punishment is a good thing or not, is a different issue. I made my stand clear at the beginning of this post, and I don't want to mix issues in this post.

Open, stilt parking spaces are common areas, builders can’t charge extra: SC

Let's see how this actually works out in practice. :)

“Open-to-sky” areas or “stilted” covered portions of their flat complexes, usable as parking spaces, cannot be sold separately by flat builders/promoters/developers as “garage”, the Supreme Court has ruled. These spaces are part of the “common areas” in flat complexes and not “saleable independently as a flat or along with a flat”, the court said in a judgment.

via Open, stilt parking spaces are common areas, builders can’t charge extra: SC.

The controversy over beards

Sanjukta's post alerted me to an event that slipped my notice. :) Apparently, the supreme court had quashed an appeal by a Muslim student against his convent school disallowing him to sport a beard. While disagreeing with the student's counsel, one of the judges was allegedly heard making a remark "We don't want to have Talibans in the country". This has understandably caused quite a furor among part of the Muslim community who have been pointing this remark as a display of injustice or an insult against Muslims. Amusingly, the Muslim counsel appearing on behalf of the student and asserting that the beard was an essential part of the Muslim identity was pointed out by the judge to be not sporting a beard himself! :) Now while I agree that the Talibanisation sentence was unnecessary in such a case, I essentially agree with the court's assessment, especially the rest of that comment that is attributed to that judge: "...Tomorrow a girl student may come and say that she wants to wear a burqa, can we allow it". This is an issue which Britain faced not too long ago, and I consider Britain handled it not as well as they should have. Every society has a few fundamental principles that they should live by and others attempting to join the society can ask for understanding and accommodation as long as they don't compromise with these principles of the society. I expected the Britishers to say more forcefully that their society is based on respect and dignity for women and wearing the veil does anything but that. Instead they cloaked their objection in euphemism of security etc. which was regrettable. India is a different case. While we too claim that our society should ideally be based on similar principles, the truth is that the majority religion Hinduism is still battling perceptions of Sati and child marriage. Punjab has one of the highest incidents of female infanticide and one of the most skewed sex ratios. Girls are still considered a burden in less than progressive families, dowry is a common malpractice. In such a situation, where none of the communities can claim to be morally at a high ground with caring for women, Indian courts would probably face a tougher case when something like what happened in Britain, happens here. Coming back to the "beard means Talibanisation" case, an Outlook blog post by Sundeep Duggal cuts through some of the misinformation about the case - read his "FAQ: The Supreme Court's Beard Judgement". One relevant part is:

4.1 What are the legal ramifications of Justice Katju's remarks?

None whatsover. It should be borne in mind that there is routinely a lot of give and take between judges and counsel in the supreme court, especially given that counsel in this case was an ex-colleague on the (HC) bench. Most significantly, the order of the Supreme Court does not consist of "the reported remark about Taliban". Therefore it cannot even be considered as obiter dicta.

In other words, these remarks mostly came about in conversation on the case, and is not part of the judgement.

To those claiming that the right of Freedom to practice your religion has been violated, Telegraph has an interesting precedent to offer:

Experts point out that although our Constitution guarantees one’s freedom to practise one’s religion, there are reasonable restrictions to Article 25 imposed by the state on such grounds as public order, morality, health and other provisions. We can perhaps refer to the Commissioner of Police & Others vs Acharya Jagadishwarananda Avadhuta & Another case where Ananda Margis argued that their tandava dance with tridents and other objects was part of their religion and it should be allowed in public.

Deciding on the case, the apex court ruled, “Though the freedom of conscience and religious belief are absolute, the right to act in exercise of a man’s freedom of religion cannot override public interest and morals of the society and in that view it is competent for the State to suppress such religious activities which are prejudicial to public interest.” The court also found that the tandava dance was not an absolute requirement of their faith.

Another great point has been made by Sherwani Mustafa on Khabrein.info:

...

As such, ‘The Muslim Women ( Protection of Rights on Divorce ) Act was in fact the destruction of ‘ Muslim women’, and a glaring fraud on ‘shariat’ played by the ‘mullaiyat’. Similarly, instead of tracing the essence of ‘ Islam’ in  a foolish student’s attempt to sport beard and making all this humbug, if a vehement movement is launched in India for the enforcement of  'Islamic Criminal Law’ for Muslims, I will be the first person to support it whole-heartedly. Let the community and its intellectuals come forward with a strong demand that if a Muslim commits theft, his hands must be chopped off, if he is guilty of murder, he must be beheaded in full public view, if he is found guilty of fornication, adultery or rape, he must be stoned to death, and so on. I am sure the entire country will support such a demand.

Sounds fair to me. :) Instead of picking and choosing which aspect of their religion should be applied to their lives, why not go the whole hog and add the rest of the barbarian punishments also into the mix? You can't on one hand use religion to justify special treatment for part of your social life, and then whenever inconvenient, use the other laws of the country to govern aspects of life where the rules of the religion are too tough to swallow.