Pratap Bhanu Mehta Posted online: Mon Feb 11 2013, 03:26 hrs
It is the peculiar indignity of our republic that the odour of
conspiracy so often attaches itself to death. Far from bringing a
dignified closure to a serious episode, Afzal Guru's execution raises
several political challenges. There is such a deeply entrenched
suspicion among so many sections of Indian society that it is perhaps
worth beginning by resetting some presumptive courtesies citizens
should extend to each other. If you read the Supreme Court judgment
upholding Afzal Guru's sentence in its entirety, it is very hard to
sustain the charge that the court is being malicious, biased or has no
concern for fairness. It does quite a job of sifting through various
arguments. Indeed, there are moments where it is easy to use the
court's own scrupulousness against it. The crime is serious. Even
though Afzal Guru was not a regular member of a terrorist
organisation, the court was convinced that he was part of a
conspiracy. And the court came to a judgment, according to its best
lights.
Having said that, it is not unreasonable for someone to disagree with
the court's final determination. The disagreement turns on two
judgement calls. Was the quality of representation at the stage of the
first trial so inadequate as to cast doubt on whether Afzal Guru got a
fair defence? This question is particularly germane when the death
penalty is being awarded. And second, was the death sentence the right
punishment for the crime? Raising these questions should not be out of
bounds. Those campaigning on Afzal Guru's behalf are not enemies of
democracy. On the contrary, they are strengthening it. If anything,
India is more likely to be strengthened, not by the hangman's noose,
but the candour and quality of its public discussion. Civil society
can sometimes be too presumptuous in attributing bias to the state;
equally it has to be said that the state is sometimes too quick to
dismiss those who might think it has made a mistake. Let us at least
grant some good faith disagreement in judgment.
This is not a question of being evasively even-handed between the
state and its critics. For what it's worth, this column has
consistently argued against the death penalty. Every hanging is
potentially a dark day for justice. It has also pointed out that even
the courts make mistakes. In this instance, though, at least from the
outside, there does not seem to be damning evidence of bad faith in
the judicial process itself. The courts took a call, with all the
attendant imperfections that are associated with the process. And we
have to give that call some presumptive authority; and the state has
to act upon it.
But there is a question about the narrative surrounding the execution.
There is a good reason for granting the executive some discretion over
the administering of the death penalty. It would be a mistake to take
away that discretion. This discretion gives more opportunity to
wrestle with any residual doubts the executive might have in death
penalty cases; they are in a special class. It is rightly premised on
the idea that executions can be political acts, not in a narrow
partisan sense, but in the sense that larger political issues
affecting the nation can be taken into account. The question is not
one of discretion, but whether it can be exercised credibly and
fairly. And here is where the state fails. It has failed to project
its own credibility for several reasons.
The biggest threat to the credibility of the Indian state is
loose-talking politicians and officials. Justice must not just be
done; in a state that cares for legitimacy it must be seen to be done.
We can only speculate on the immediate political logic that drove the
timing of the decision. But, politics apart, the executive does have a
structural crisis of credibility: its own conduct makes it
untrustworthy. One day Digvijaya Singh is casting doubt on the
integrity of the state and castigating it for false prosecutions. The
next day he is evoking the same state to shore up the Congress's
credentials on the war on terror. Sushilkumar Shinde, one day, makes
grave accusations of the RSS and the BJP being associated with terror
and then fails to follow through on the logic of his own argument; the
next day, he is trying to project a state above politics. The irony of
the Congress, in public, trying to shore up its credentials on the war
on terror, while Narendra Modi goes on about growth, is not being
lost. It is lending credence to the suspicion that the Congress,
perhaps even more than the BJP, has an investment in keeping
communalism alive as a political issue. The BJP, for its part, will
never learn the lesson that a credible justice system requires a
certain matter-of-factness in civil society; not a breast-beating call
for death. When you look at the conduct of this lot, it has been hard
not to harbour doubts about the kind of considerations that move their
decisions. This is a real political problem. They demand from citizens
a presumptive authority in the state. But they have done precious
little to make it credible. This crisis is only going to get
exacerbated.
It has also been exacerbated by the fact that the absence of any
political leadership has made articulating the so-called political
conscience of the nation difficult. It is now a free-for-all, where
every politician speaks without any sense of responsibility. Words
alone do not matter, but discourse from politicians that does not do
justice to the moral complexity of the matter undermines trust.
The Indian state has, again unwittingly, exposed its deep fragility.
It had to take precautions in Jammu and Kashmir against violence. But
how long can the Indian state continue on the presumption of distrust
against ordinary Kashmiris? In the guise of saving them, the Centre
wastes no opportunity to underscore its essential suspicion of
Kashmir: it isolates it, cuts it off from elementary connections of
modern life like internet and cable television, puts virtually the
whole state under curfew. This is not the sign of a state tough on the
war on terror. It is the sign of a state too frightened of its own
people, too easily ready to sequester them. Both the BJP and the
Congress will serve India better if, the next time they want to appear
tough on the war on terror, they measure themselves by their ability
to bring Kashmir into the fold of normal life. We may have hanged
Afzal Guru. But the process of restoring the larger credibility of the
state has barely begun.
The writer is president, Centre for Policy Research, Delhi
Indian Express
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