‘The courts did not protect Afzal Guru’s right to fair trial’

  • Aditya Sinha
  • Publish Date: Jan 19 2016 1:08PM
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  • Updated Date: Feb 12 2016 6:58PM
‘The courts did not protect Afzal Guru’s right to fair trial’

<p>Nandita Haksar is a rare lawyer who speaks for the marginalised people. As a campaigner, teacher and a writer, she argues powerfully for the human rights. Haksar was the first to challenge Armed Forces Special Powers Act (AFSPA) in the state in 1983.<br /> <br /> Nandita&rsquo;s published work includes Demystification of Law for Women (1986); Framing Geelani, Hanging Afzal: Patriotism in the Time of Terror (2009); Rogue Agent: How India&rsquo;s Military Intelligence Betrayed the Burmese Resistance (2010); The Judgement That Never Came: Army Rule in North East India (with Sebastian Hongray, 2011); ABC of Naga Culture and Civilization (2011); Across the Chicken Neck: Travels in North East India (2013).<br /> <br /> In her most recent book, &ldquo;The Many Faces of Kashmiri Nationalism: From the Cold War to the Present Day&rdquo; (Speaking Tiger 2015), Haksar traces the &lsquo;tortured history of Kashmiri nationalism through the lives of two men: Sampat Prakash, a Kashmiri Pandit and Communist trade union leader who became active in politics during the Cold War years, and Mohammad Afzal Guru.&rsquo;<br /> <br /> In an interview with Majid Maqbool, Nandita Haksar talks about what prompted her to write a book on Kashmiri nationalism; her unsuccessful campaign to save Afzal Guru, who was eventually hanged to &ldquo;satisfy the collective conscience of the society&rdquo;; the condition of Kashmiri prisoners in Indian jails, and why even if AFSPA is repealed, other laws will allow for torture, illegal imprisonments and unfair trials.<br /> <br /> &nbsp;<br /> <br /> EXCERPTS<br /> <br /> What prompted you to write this book on Kashmiri nationalism? What is the place of Kashmiri nationalism in Indian nationalism and do you see its natural expression as independence for the Kashmir region if, for example, India agrees to hold a plebiscite to settle the Kashmir dispute at some stage in future?<br /> <br /> 9789385288180_Website-480x748<br /> <br /> As you know I was involved in the trial and campaign for the release of Abdul Rahman Geelani, a Kashmiri accused in the parliament attack case.&nbsp; After the case I wrote a book called &lsquo;Framing Geelani, Hanging Afzal Patriotism in the Time of Terror.&rsquo; It was published in 2007. The book dealt largely with the human rights issues but many other questions relating to religion and secularism were also dealt with in the context of the trial and campaign.<br /> <br /> However, many questions still troubled me; mostly to do with the relationship between Hindus and Muslims in India and also in that context the relationship between Kashmir and India.<br /> <br /> Many of the young people involved in the campaign rejected the very idea of nationalism. I found it interesting that Afzal Guru had no objection to my kind of patriotism but he too rejected nationalism, both Indian and Pakistani.&nbsp; He also saw the difference between my nationalism and the nationalism of Narendra Modi who was at the time not Prime Minister.<br /> <br /> I was and even now troubled by the growing attraction to religious extremism in India, Kashmir and in the world. In that context the question that troubles me is whether all ideals and values I hold dear &ndash; are they outdated; do they have any relevance at all for the present times.<br /> <br /> And I met Sampat Prakash who faced similar dilemmas and he was a communist but because of differences on various issues he left the party while still adhering to the values and ideals of communism. He had been a trade union leader. The way the Low Paid Government Employees Federation worked and kept together, members came from Kashmir, Jammu and Ladakh even in the most trying of times was really remarkable.<br /> <br /> I thought the lives of Sampat Prakash and Afzal Guru exemplified so many contradictions of our times and perhaps a book on them could help us understand the meaning of nationalism in Kashmir but also India and Indians.<br /> <br /> I believe history and biography together can throw more light on political complexities than just academic writings which of course have their place too.<br /> <br /> Do you support the idea of independence of Kashmir? What is the most practical solution to the Kashmir dispute in your view?<br /> <br /> The idea of an independent Kashmir as it existed in 1946 with all the constituents could have been really a wonderful country but as Sheikh Abdullah said neither India nor Pakistan would have allowed it.&nbsp; Even more than India and Pakistan the Western countries, Britain and the USA would have undermined its independence.<br /> <br /> Today when Kashmir is divided between India, Pakistan and China, I do not think it is practical to think of an independent Kashmir. Besides the growth of religious extremism has ensured that communal forces will keep the people of Jammu and Kashmir and Ladakh divided; and even today the imperialist powers have been playing a game to keep alive religious extremism.<br /> <br /> As for the question of solution to the Kashmir problem: it is for the Kashmiris themselves to come up with their answers. I genuinely believe the people themselves must decide their political future.<br /> <br /> You were defence counsel of Azal Guru in the Parliament attack case and also instrumental in the release of SAR Geelani, Showkat Guru and Navjot Sandhu. Did Afzal Guru become a victim of the then ruling congress government that wanted to appear tough on &lsquo;fighting terrorism&rsquo; leading up to the general elections by the BJP and the Congress government rushed Guru to the gallows?<br /> <br /> I was not the defence counsel for Afzal Guru, Showkat Guru or Navjot Sandhu.&nbsp; Showkat and Navjot had their own counsel; Afzal was represented by an amicus curiae at the stage of trial and later by other counsel in the High Court and Supreme Court. It was only after my client SAR Geelani was acquitted by the Supreme Court that I took up the campaign to save Afzal Guru from the gallows.<br /> <br /> It was only after Afzal was sentenced to death by the Supreme Court that we launched the Save Afzal Guru campaign. Both ND Pancholi and I represented Afzal Guru, drafted his mercy petition and made miscellaneous applications on his behalf.<br /> <br /> Yes Afzal Guru did become a victim of the election politics and BJP&rsquo;s vicious campaign and the Congress&rsquo;s decision to appear tough on terrorism. But there were other factors which undermined our campaign to Save Afzal as well which I have dealt with in my book.<br /> <br /> Do you think the Judiciary compromised on impartiality and fairness when it adjudicated on Afzal Guru&rsquo;s case?<br /> <br /> At every stage the courts did not protect Afzal Guru&rsquo;s right to fair trial.&nbsp; At the trial court he asked for several lawyers who all refused to represent him. Finally the court appointed an amicus curiae who was most reluctant to represent Afzal.<br /> <br /> At the High Court the lawyer who represented Afzal actually filed an application stating that Afzal wanted to be killed by a lethal injection.&nbsp; That is when Afzal sent a letter to me asking me to get him another lawyer for the Supreme Court.<br /> <br /> Although Afzal Guru had a lawyer at the Supreme Court but the court showed its own bias by upholding the death sentence not on legal grounds (they acquitted him of the charge of belonging to any terrorist organization) but to &ldquo;satisfy the collective conscience of the society.&rdquo; That is not a ground under the law or Constitution.<br /> <br /> You have included Afzal Guru&rsquo;s letter in the book which he wrote to you while he was in prison. Did he consider himself as a victim of the circumstances? Did he have any faith in Indian judiciary, or he knew all along while he was in prison that he will be hanged someday?<br /> <br /> I have included only one long letter Afzal Guru wrote to me in January 2008.&nbsp; I do not know whether he would describe himself as a victim of circumstances but he was a victim of history&hellip; No, Afzal Guru did not have faith in the Indian state which includes the Indian Judiciary but he had for a long time faith in the campaign to save him. He had seen an effective campaign had saved his co-accused from the gallows and led to acquittal of Navjot. That campaign had the impact of reducing Showkat&rsquo;s sentence from death penalty to ten years. So he had faith in democratic campaign. Unfortunately, the campaign was also not as rigorous as it should be and I have discussed that at length in my book.&nbsp; But Afzal was a political person and he was realistic enough to know that if Indian politics required his life would be sacrificed at the altar of political expediency and he could be hanged.<br /> <br /> When was the last time you spoke to Afzal Guru, and what were his final words to you? Was he afraid of death?<br /> <br /> In a sense the letter I have published were Afzal&rsquo;s last words to me. No, Afzal Guru was not afraid to die.<br /> <br /> In the past there have been reports of ill treatment of Kashmiri prisoners in various prisons outside the state. In the recent years many Kashmiri youth have been acquitted of all charges after decades of incarceration in Indian jails, and now they struggle to get back to normal life. How do you see the present condition of Kashmiri prisoners in these jails and is there any mechanism in place or any organization working to protect their rights and provide legal support in individual cases?<br /> <br /> Yes, the condition of Kashmiri prisoners is very bad and they also suffer from murderous attacks provoked by communal jail authorities. They used to have some protection when the International Red Cross had access to them but that has been denied since 2006 or thereabouts.<br /> <br /> The question of rehabilitation of Kashmiri prisoners is a very serious one and requires full time attention. Also, there are many cases of young men accused of being militants who are denied basic rights such as their right to a passport.<br /> <br /> I do not know of any organization which is focusing their full time attention on the problem; there are NGOs who may take up a case or two but there is a need for a full fledged organization. Perhaps the Government of J&amp;K should be pressurized into looking into the problem.<br /> <br /> What are your views on the beef ban issue that has been politicized in India and also in Jammu and Kashmir?<br /> <br /> I think the issue of the beef ban reflects the fault lines of Indian democracy.&nbsp; This is a core issue on the RSS agenda. But the RSS cannot claim to speak on behalf of all Hindus or people they claim are Hindus. Beef is eaten by sections of the Dalit community and it is also basic food for many people living in the North East. Therefore the ban of beef is a direct hit on the idea of India as a democratic, inclusive country. The idea of imposing the idea of one culture and one identity goes to the very core of the question of defining India.<br /> <br /> Unfortunately, the beef ban has sharpened the Hindu-Muslim divide. If only it would bring all the democratic forces together to fight forces of fascism and communalism it could be turned into an opportunity to make alliances. If Kashmiri people, peoples of the Northeast, and the Dalits along with other democratic forces formed an alliance to fight the ban, we could start a very real movement against saffronization.<br /> <br /> Do you see any likelihood of revocation of AFSPA in the years ahead? No security personnel involved in human rights violation in Kashmir has been punished in a civilian court as per the recent Amnesty International report on rights violations in Kashmir?<br /> <br /> When I filed the first case in the Supreme Court challenging the validity of the Armed Forces (Special Powers) Act, 1958, I was called anti-nationalist.&nbsp; Others had challenged the Act in the Gawahati High Court before me.&nbsp; But today there is a section of the Indian army which believes that using the armed forces for internal security duties corrupts the army. I took up the issue to the United Nations Human Rights Committee and it did embarrass the Government.<br /> <br /> The problem is that even if the Act is repealed, there are other laws which are as bad and which will allow for torture, illegal imprisonment and unfair trials.&nbsp; Besides the repeal of the law itself will not stop the human rights violations. The real cause is the undemocratic nature of the Indian State and this has been strengthened by the so called war on terror started by the USA. The so called war on terror has justified lowering international human rights standards all over the world, including in Britain and the USA.</p>