Justice is delayed but not denied. I am not sure if I can use such a proposition after the state decided to hang the Terrorist – Mohd.Afzal Guru who was a patriot of Pakistan in spirit but Indian citizen legally. And why we should brand him a patriot of Pakistan? The purpose for which he was employed is the task handed over to him apparently by Pakistan, which is in my opinion is a state formed out of a stolen land from Bharath. And as per Justice Markandeya katju it is a “Fake State”. It terrorizes the people of Baluchistan and North West but thinks that it alone has a right to talk about Human rights in Kashmir. Now Afzal Guru a resident of Kashmir fallen in the trap of Jihadi groups, in the name religion or some romanticized Islamic state which Islamic Terrorist groups aspire to establish with active logistical and ideological support of Pakistan.
Legally speaking the court relied mostly on Afzal Guru’s confession corroborated by the evidence of phone call records which the terrorists made to him. To dive bit deeper in this aspect we shall review the following.
As per The Indian Evidence Act, 1872, confession is considered as weak evidence which will not be treated as a sole rationale to convict the accused unless it is corroborated by an independent or circumstantial evidence. Please read section: 24, 25, and 27 for more details. Additionally Constitution of India Art: 20(3), talks about right against self-incrimination.
Art: 20(3) – No person accused of any offence shall be compelled to be a witness against himself
In its report to the then Law minister of Govt.of India Shri. Arun Jaitely the Law commission of India stated that there is no need to dilute the feature of right to remain silence, if done this will be ultra wires of constitution. So once a crime is committed and based on the prima facie evidence if someone is arrested, he has the right to remain silent and it is the investigating officer’s job to unearth the circumstances which lead to the actual crime along with sound evidence.
But after a thorough judicial scrutiny if circumstantial evidence stands out to be a vital component where defense has no scope to challenge this piece turns out to be good evidence. Out of his own will if accused is ready to confess this will be considered as evidence just that this has to be recorded by a magistrate. But there was some controversy that the POTA Act 2002 diluted some of these provisions, for Eg : the confession can be recorded by a superintendent of police and this was also one of the ground which the learned defense counsel argued vehemently for Afzal Guru. But the court has rightly convicted Afzal Guru for the simple reason that the confession was indeed voluntary and it was corroborated by prosecution. Invoking sections in IPC (Indian Penal code) alone was sufficient under ‘Offences against State’ for a death penalty without a necessity to take shelter under POTA Act.
Politically speaking for those who speak for Afzal Guru their only line of defense seems to be that this whole conviction was based on his confession and it is against the principles of natural justice. Arguments such as these are indeed misleading and they tend to question the dignity of courts and our Independent Judiciary too. It has to be noted that days after attack the phone tapings of other accused revealed broader conspiracy which added further strength to corroboration. It is unfortunate to question the wisdom of court. Like in the case of Pakistani terrorist Ajmal Kasab the secrecy of execution is justified. It is an utter disregard of nation to equate/treat terrorist Afzal Guru as a symbol of peace or a freedom fighter when the symbol of democracy is attacked. If parliamentarians are attacked and killed that means they (terrorists) have actually killed the citizens of India who voted them as their representatives and sent them to Parliament. This is more severe an offence than the 2008 Mumbai terrorist attack. Now why are we not in unison when it comes to pay homage to those brave hearts who laid their lives in service to their motherland? Ie., the security guards who were killed in this attack.
The distortion of Islamic fundamentalism and leftist idiosyncrasy is appalling both of which are great threats to this country, while the former believes in establishing a global Islamic caliphate which is a medieval obsession oblivion of the current day realities and the latter being a victim of communism gibberish which approves killing humans in the name of revolution. For that matter both these groups consider that eliminating the non-believers is an important part towards achieving their ultimate objective. They (Leftists/Communists & Islamic Fundamentalists) do not realize that they are chasing a mirage. And in whose dictionary loyalty towards mother land and nationalism has no meaning or they are considered as detrimental to their goals. Both of whom have to come out of their deep slumber and affirm that Jihad and revolution can do no good to anybody or themselves. If these two groups continue to perpetrate crimes against other human beings, the courts, Govt and the common man shall use the might of his armory to protect the unity of this great land.
The time of hanging is in no doubt a political decision right before the general elections. I am not sure if the rulers have come to a conclusion that preferential treatment of minorities (especially religious minorities) are not going to keep them in power for the next term and it is safe to play a different type of game as they realized that this did not work out either in Gujarat or UP.
Note : Please revert if any corrections are needed in quoted legal sections of statutes and opinion/s based on the judgment by supreme court on State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005 Appeal (crl.) 373-375 of 2004