In Conversation with Zaffar Shah

Junaid Nabi Bazaz  Authint Mail

Senior Lawyer Zaffar Ahmad Shah speaks to Authint Mail about why Afzal Guru’s hanging was a murder of justice, the extrajudicial consideration that led to his execution and its larger ramifications on the people of Kashmir who are looking up to Indian courts for delivering justice.
AM:  As a senior lawyer, what is your opinion on the judgment that was pronounced by the Supreme Court of India in Mohammad Afzal Guru’s case? Many people called it a judicial murder! What are your views?
ZS: The question as to whether the judgment of a court is right or wrong depends upon several factors. One is the kind of evidence which is produced by the prosecution in a court. If the prosecution evidence establishes guilt of an accused, then only he can be convicted. Now reportedly in the case of Afzal Guru, the prosecution had not produced any credible evidence so as to connect Afzal with the crime alleged against him. So, as a result of lack of evidence or existence of only scanty evidence, the court in recording conviction against Afzal Guru, there were several flaws during the course of a trial which has resulted in miscarriage of justice in this case.
AM: After his hanging, people raised important questions about the lack of legal resources provided by the Kashmir’s separatist leaders to Afzal Guru who they now clam as their hero. What were the options available to save Afzal from going to gallows?
ZS: Any person against whom any kind of criminal allegation is made, such person, under law, is required to be tried by a court. Now, every accused also has a right to engage a lawyer of his choice. There is constitutional guarantee available to an accused. So, when the separatists talk about it, what they essentially mean is that when the case was lodged against Afzal by prosecution at Delhi, the family members or Afzal could have expressed a choice about the lawyer and whether the lawyer was to be paid or not to be paid, or what expenses were required to be provided to lawyer. Perhaps those arrangements could have been made by public donations. In my opinion, perhaps no such request was made by Afzal Guru or his family members to any of the lawyers; whether to the Bar Association or otherwise who practice in Jammu and Kashmir. Now, no lawyer at his own can appear in a case unless his services are engaged by the accused concerned. The family members of Afzal, it appears to me, didn’t chose to engage any lawyer from the state. It also appears to me, though I don’t have any knowledge about that, whether the family members approached any of the lawyers in the state of Jammu and Kashmir to defend Afzal at Delhi. What I was told was that the choice of the lawyer was made there in Delhi itself by the family. So, whatever separatists say, I don’t know whether separatists were taken into confidence by Afzal’s family or not when the trial was started against him at Delhi.    
AM: Few days back, the death sentence in 13 cases was commuted by Supreme Court of India. The mercy petition of five among them was pending for lesser time than Afzal’s clemency was with the Indian president. If Afzal had been alive, it could have saved his life too?
ZS: Very true. The court which recently delivered its decision with regard to the pendency of mercy petition did not lay down any new law. Whenever a decision is delivered by a court, it means that the law already exists. So when the Supreme Court said that pendency of a mercy petition for a longer time results in commutation of a sentence from death to life imprisonment, that legal view was available to Afzal. So therefore in my opinion, the hanging of Afzal was totally unconstitutional and illegal. If you recall, the court in recent decision has also said that the family members of the convict who is condemned to death should be allowed to meet the convict before he is actually hanged. Now this is not a law laid down for the first time. It already existed there. In case of Guru, this law was violated. Therefore, on both counts, the hanging of Guru was unconstitutional. 
AM: So if Guru’s execution was unconstitutional, then what are the other options left for seeking justice?
ZS: If the law has to apologize itself, the law can do that only by compensating the family concerned. The law cannot bring the person who has been hanged to life. Therefore, in my opinion, the only alternative available is that the family members of Guru can claim damages against the state for having unconstitutionally hanged Guru.
AM: The last option for seeking justice in any case is the court. Afzal’s secret hanging was a miscarriage of justice and brazen violations of Supreme Court guidelines. Does not it push people to adopt violent means to seek justice when justice is openly denied like this?
ZS: It depends upon the kind of response people will have to it; whether this is an isolated event or this is a series of events. If it is a series of events, than people will be justified in agitating against such kinds of arbitrary action against the state. But in the case of Afzal Guru, it is for the first time, so far as Jammu and Kashmir is concerned, that it came to the notice of the people that he was not allowed to meet his own people and his clemency was pending and before Afzal Guru could take any action against that clemency rejection which was not conveyed to him in time, the state executed him. This action, as I said, is illegal. If you recall the recent decision of Supreme Court, it also provides that at least 14 days’ time should be between the date of rejection of the mercy petition and the date of hanging. In case of Guru, these 14 days were not observed and therefore when we say that his killing is unconstitutional, then this is condemnable act which is resorted to by the government of India by hanging him in contravention of law. Now how can one take it? Whether a person should resort to violence and now assuming it theoretically that people resort to violence, it must result in achieving some objective. The only possible objective can be that such an act should not happen in future because what has happened has happened. Now the Supreme Court having clear cut law on this subject, I would assume such an act would not happen in future. 
AM: Can we say that he was hanged just because he was a Kashmiri?
ZS: There can be lot of hypothesis about why Afzal was hanged. One could be that it was done for political reasons. Second could be that it was done at the instance of parties in opposition who were accusing the ruling party for not acting in the matter. Prima facie, it appears that there was something more than that meets the eye; the way the hanging was brought about, the way the matter was rushed through, the way his family members were not informed. Then obviously one can say that there were extra-judicial considerations in the hanging of Afzal Guru.