I’m not against the death penalty. I’m not enamoured of it. But the fact is that justice is about little else but vengeance when it comes to punishing crimes. Especially those considered particularly heinous, or that have targeted the nebulous entity that is the State through focused acts of violence conducted against the State’s very flesh and bones, its non-nebulous citizens.

That the State also conducts heinous crimes and conducts violence against its own citizens and gets away with them is no reason to get everyone off the hook. (Four policemen in Manipur were found guilty by a judicial inquiry in 2010 of killing two innocent citizens in a fake encounter in Imphal. No punishment has been meted out to the guilty to date, and one of the policemen was even awarded the President’s police medal for gallantry this Republic Day.) The job is to get the State “on the hook” when its representatives break the law.

Which doesn’t mean that justice is always about vengeance. Punishment is largely about deterrence, mixed with a “you reap what you sow” principle, and also about keeping repeat offenders off the streets. That the death sentence is applicable only in “the rarest of rare” cases makes the “Newtonian” laws of punishment as deterrence and protection of society change into the more “quantum” laws of straightforward retribution.

It’s perfectly natural for many to find the death sentence abominable, and I understand their position even as I haven’t climbed on to their wagon. And yet, the hanging of Mohammad Afzal Guru has made me venture to rethink my position on capital punishment. Not on humanitarian grounds, because that would set the field outside the jurisdiction of revenge and in the zone of mercy. But because the implementation of law and jurisprudence, according to which this whole edifice of social order against chaos is held together, can come crashing down if Afzal was put to death last Saturday without him being provided legal recourse that was his due according to law.

Sitting from where I – and most people – do, Afzal had committed a serious crime. He had been charged with possession of explosives at his house in Delhi, “conspiring to commit and knowingly facilitate the commission of a terrorist act”; and for harbouring and concealing the five terrorists who had been killed in the shoot-out that ensued their attack on Parliament on December 13, 2001.

So the reaction of many perfectly decent people, channeled and embellished by an overwhelming section of the media, has been: “Mohammad Afzal was a terrorist. He was found guilty by the law after he was given a fair trial and he was sentenced to death. After a delay that has to do with politics, justice was delivered. And in case some corners were cut to prove that Afzal was guilty according to the law and was guilty to hang, what’s the big deal? He was a bad guy and it’s better to be safe than sorry with terrorists even if that means some procedures were done away with.”

The fundamental horror of the possibility of sending an innocent man to the gallows, or a man whose crime deserves less than the maximum punishment of death, doesn’t cut much ice when it comes to a terrorist in the public mind. In the public mind, the terrorist, no matter what the charges, what the quantum of crime, is already guilty enough to be hanged. As someone told me, “Getting evidence against terrorists is very hard. Sometimes, it’s not possible.”

As Amitabh Bachchan, known to be a spokesperson for the “nation at large”, was quoted in the papers saying, “The agencies have fully investigates this [case]. We salute the law of the land.”

As the Hindustan Times editorial on February 11, 2013 (‘Rich slogans, quiet secrets’), after correctly pointing out the dangers of politicising Afzal’s hanging and criticising the secrecy that surrounded it, said at the end, “…there is not an iota of doubt about the validity of these two cases [Afzal and Ajmal Kasab]”.

Really? Not even an iota?

The February 10, 2013 issue of The Week – published a whole week before Afzal was hanged – has a cover story (‘Ghazals, Guns & the Gallows’) on Afzal Guru. Srinagar special correspondent Tariq Bhat writes an illuminating piece about Afzal’s antecedents in Sopore, about how Afzal grew up in the village of Seer Jagir near Sopore town that was a “strong base for militants” in the 90s, and how, after joining the Jammu and Kashmir Liberation Front (“That, however, explains his ideology was not indoctrinated by the dominant Jamaat-e-Islami, majority of whose adherents formed the Hizbul Mujahideen.”) he surrendered to the State authorities. Bhat spoke to people in his Kashmiri village and reconstructs how Afzal Guru, a regular Kashmiri youngster who wanted to become a doctor, was before he became the Afzal Guru we all read about over the years since December 15, 2001, when he, along with three others, were picked up by the Delhi Police.

I spoke to Bhat’s colleague in Delhi, Syed Nazakat, who has also been following the Afzal case. (Nazakat told me that the cover story was purely coincidental and that the story had been planned weeks before in an editorial meeting.) Like me, Nazakat also doesn’t think that Afzal was innocent of crimes against the State. And like me, he also believes that it doesn’t matter what we believe; what matters was how the accused, Afzal, was given judicial recourse to defend himself. “If he was given a fair trial and hanged, that would have made sense. But was he given a fair trial and hanged?”, Nazakat asked me rhetorically.

Writing in The Hindu on February 10, 2013 (‘Afzal Guru’s ‘Extinction’), Anjali Mody, who in 2002 covered the Parliament attacks case trial for the paper, compellingly points out that the courts did not prove that Afzal was guilty beyond reasonable doubt. Mody lists major questions about the veering away from judicial propriety in the trial, three of which stand out and I extensively quote. The box brackets are mine.

• Lack of representation:

“[Afzal] had nothing that amounted to legal representation. The lawyer first appointed to represent him admitted as evidence – without consulting him – documents that were used against him in court. She [Afzal’s lawyer] withdrew from the case prior to the trial to represent another accused.

While the three others [accused] were represented by some of India’s sharpest legal brains, Mohammed Afzal’s case was mediated by an amicus curiae [a “friend of the court” who is not a party to a case and who offers information that bears on the case but that has not been solicited by any of the parties to assist a court], who, far from fairly representing his case, was at best inarticulate and at worst actively hostile to him. This left Afzal, a man with no knowledge of the law, to make interventions and cross-examine witnesses himself.”

• No investigation into Afzal’s connection with the Special Task Force:

“The trial court knew on record from Mohammed Afzal that he had been a member of the JKLF and surrendered in the early 1990s. As a surrendered militant, he marked regular attendance at a camp maintained by the shadowy [and now disbanded] Special Task Force in Kashmir…He was a man that the security forces knew intimately. He also said that two key persons connected to the case – Mohammed (who was killed in the Parliament attack) and Tariq (whom the state claims has vanished) – were first introduced to him at the STF camp. A question that was never asked, and therefore never answered, was how was it that the security forces did not know of Afzal’s movements, associations and plans, given that they kept close tabs on him, picking him and holding him in illegal custody whenever they chose.”

• Discrepancies in evidence: “Documents produced as evidence in court showed that the Srinagar police had recorded the time of arrest as several hours in advance of when the Delhi police say they had information about his whereabouts and had messaged Kashmir…

“…One SIM card [of Afzal’s phone] had been in use before it was sold to him. How different courts interpreted this makes fascinating reading and raises questions about why the case for Afzal Guru’s death was pursued with so much zeal.”

The Week’s Syed Nazakat finds it amazing that the two-three years after Afzal’s surrender to the security forces, which he had mentioned in his 2005 mercy petition to the then president APJ Abdul Kalam, was never looked into. “What was the relationship between Afzal and the Indian State after he surrendered? In the court plea, Afzal’s wife Tabassum mentioned one Major Ram Mohan Roy of the 22 Rashtriya Rifles, and of two deputy superintendents Vinay Gupta and Davinder Singh, who apparently tried to make him an informer for the State. Later Gupta and Singh allegedly told Afzal to arrange accommodation for two men who would later end up attacking Parliament on December 13. No one – not the courts, not the media – bothered to investigate this alleged relationship between Afzal and the Indian State in those two-three years.”

Nazakat is not surprised that Afzal’s trial – from when he was charged under the now-defunct Prevention of Terrorist Activities Act (POTA) in June 2002 by a special anti-terrorist court, to when the court sentenced him to death in December 2002, to when the Delhi High Court upheld the death sentence in October 2003, to when the Supreme Court upheld the death sentence in August 2005 – went without anyone questioning some serious contradictions. “He was someone whom nobody knew or cared about. Unlike some others accused, he had no access to lawyers or concerned friends or acquaintances in Delhi. There are countless stories of surrendered militants – ikhawanis – left in the lurch by the Indian State in Kashmir. Afzal Guru’s story was just one that came under the spotlight and, then in a way, the real story never did.” Nazakat points out to me that Azfal had provided a list of the names of six lawyers, from which he wished one to represent him. The judge did not allow any one of these names to be considered and provided no explanation for his decision.

The media – barring a few such as The Week, The Hindu and DNA – have overwhelmingly played their role as amplifiers and confirmers of what their perceived audience-readership wants amplified and confirmed. Instead of asking questions about holes in the Afzal Guru trial story, they have mostly ra-ra-ed in a “I’m a bigger nationalist than you” contest, finding anchorage in stories about the “politicisation of the hanging”, “the inordinate delay in the hanging”, “what the hanging means for Kashmir Valley”, etc etc.

In a polarised climate, clusters on social media and some aforementioned mainstream media platforms are dealing with “other” points of view, questioning the legitimacy of Afzal’s death sentence. But on the whole, it’s been Bible-thumping before the converted – the “Hanged at last!” crowd being feted by the overwhelming “Hanged at last!” sections of the media, while the “Democracy is dead!” lot venting in a closed bubble chamber on the social media and feeding off the “Was the hanging legit?” drip provided by some sections of the mainstream media.

So, the moment a self-styled “nationalistic” consumer of, say, Times Now or Hindustan Times, (accidentally?) comes across the name of Arundhati Roy accompanying her piece in The Hindu on the Afzal Guru case on February 10 (‘A Perfect Day for Democracy’), the reader, even before reading the first line, knows what the position of “this bleeding heart, jholawala Arundhati” will be. It’s the curse/blessing (depending on which side of the ideological divide you’re on) of the ideologically branded writer that affects the experience of reading the likes of Noam Chomsky, Niall Ferguson, Arundhati Roy and Swapan Dasgupta.

Perfectly argued as it is, Roy’s passionately angry article the day after Afzal’s death doesn’t attempt to talk to anyone who doesn’t already agree with her and certainly not to someone who thinks he’s right to support the hanging of Afzal. Frankly, Roy’s cogently reasoned piece is wasted – wasted in strategic terms, that is – on the left-liberal, bleeding-heart Hindu-Guardian-reading lot who are anyway anti-death sentence, never mind anti-Afzal Guru’s death sentence.

Which is again not to say that anyone can be sure that Afzal Guru was not guilty of a terror crime. The Supreme Court had noted in 2005 that Afzal had received three calls on his mobile phone from one of the terrorists on December 13 – at 10.43 am, 11 am and 11.25 am, before Parliament was attacked at around 11.45 am. But in a death sentence, like in an lbw decision, the benefit of doubt has to go to the man in the middle. And going by the trial and what has been out there in the public domain, questions pertaining to Afzal’s guilt resulting in a death sentence (as opposed to a lighter sentence) do firmly remain unanswered.

Which is why Pratap Bhanu Mehta, not of any jholawala disposition he, writing in the more “right-liberal”, “Chak de India!” publication, The Indian Express, makes a far more incisive and helpful contribution in putting some questions on the Afzal Guru case on the table of a “non-converted” readership. If there is any chance of anyone who didn’t doubt the correctness of Afzal being hanged changing his or her mind, it is by reading this informed, well-reasoned February 11, 2013 opinion piece (‘Politics beyond the Noose’, www.indianexpress.com/news/politics-beyond-the-noose/1072247/):

“…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 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.”

Entrenched positions in the media from both sides of the Afzal Guru fence make it hard, if not impossible, for “candour” and “public discussion” of any quality to take place. And, in the end, Afzal’s trial pertained to the same laws that will come – or not come – to your defence in a property dispute, a false billing case, when your child is picked up for possessing banned drugs at a rave party, a charge against your business establishment…all those other things that don’t ever lead up to a possible death sentence but certainly can sustain or break your sense of justice and the judicial procedure in your ordinary law-abiding, god-fearing, nation-worshipping lives.

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