Legal Encounters by the Coward State

N. Sukumar and Shailaja Menon

A sad day indeed when the news flashed that Afzal Guru who was convicted in the 2001 Parliament attack was executed. After a lot of dilly dallying when the powers that be accused each other of being soft on terror, Guru was legally encountered to silence the critics. However, the debates that followed the incident leave some disturbing questions. No one is disputing the fact that terrorists attacked the Indian Parliament in 2001 and such incidents need to be condemned. However, to equate the attack on Parliament as an attack on India is stretching too far, a blatant farce by the political class to emerge as 'super citizens'. Each and every single day, the ideals enshrined in the constitution, which the political class is supposed to uphold are violated.

This begs the question: who constitute the 'legitimate' citizens of this country? If you protest against Posco or Kundamkulam etc, you are anti-development. If you happen to be a dalit or Muslim or any other minority active in social movements, you are anti-national. If one protests against Narendra Modi brand of politics, you will be lathi charged or drowned with water cannons. The worst form of treatment is reserved for Human Rights activists, who challenge the iniquitous nature of our state and society. Thus, the 'ideal'; citizen is one who cheers for the state and condones its misdemeanors silently; someone who argues that Irom Sharmila has no business protesting against AFSPA, that Binayak Sen deserves to be behind bars, that Naxals need to be eliminated, that minorities need to be shown their place, that Khairlanji, Mirchpur and Lakshmipet are fitting replies to those who forget their situation in society. Increasingly, the state is pandering to these 'ideal citizens', who also provide them legitimacy to act with impunity.

The Indian constitution commences with a promise, 'We, the People of India,' For the first time in its chequered history, the idea of India as a modern, progressive, secular republic was presented as a roadmap. Increasingly, we find that the idea of India is being corroded with impunity and that the state is resorting to extra-constitutional methods to enforce its legitimacy. In the process, the notion of constitutional morality is being thwarted. Here, it is worthwhile to reflect on what the eminent lawyer and human rights activist, K.G. Kannabiran recounted. When the judge asked him as to why the Naxalites should be given constitutional protection, when they do not believe in the constitution; Kannabiran replied, "It is a test for the Constitution, not for the Naxalites. The Constitution was not selective and did not say that it would not apply to non-believers. It was meant to be universal. We have to decide whether the Indian judiciary can protect the democratic value system proposed by the constitution- whatever may be the beliefs of the accused."1 Unfortunately, the judiciary and the executive have failed to uphold the spirit of the constitution while swaying to political pressure.

Undoubtedly, Afzal Guru's execution will open the Pandora's Box. There will be shrill demands to execute each and every prisoner on death row. Surprisingly, one of the killers of Rajiv Gandhi, the former Prime Minister, was pardoned by Sonia Gandhi. Presumably, she does not occupy any constitutional authority to act thus. A personal act can influence the highest judicial authority of the land. Is this not politically motivated act? The quality of mercy is very laudable but it has to be universal and not imbued with political ambitions. By the same token, if death penalty is imposed for rape, why the hesitance in implementing the POA act in caste carnages like Khairlanji or at the Ambedkar Hostel at Patna varsity?

It is claimed that convicts like Guru are a menace to society and need to be eliminated. Even while taking such claims at face value, one ponders as to the haste with which the state readies the gallows as if it has something to hide. What is the rationale behind such secrecy? Why the state is scared to admit any dissent regarding its motives? This reflects the state's deep mistrust on its own citizens while blindly trusting its own 'super citizens'. The former president, Dr. A. P. J. Abdul Kalam had opined as to why capital punishment is reserved for the weaker sections, dalits and religious minorities. Justice V.R. Krishna Iyer expressed similar opinion during his Stochholm address, 'Any economic-penological survey will reveal that, by and large, death penalty laws' wrathful majesty, in blood-shot equality, over periods of history, deals the fatal blow on the poor, not the rich, the pariah, not the brahmin, the black, not the white, the underdog, not the top dog, the women, not the men, the dissenter, not the conformist. Capital sentence perhaps has a class bias and colour bar, even as criminal law barks at both but bites the proletariat to defend the proprietary.'2 Would the state have the courage to send Brahmeshwar Singh or the perpetrators of caste violence or communal riots to the gallows? The state remained a silent spectator but it was left to the Naxals to avenge the massacre at Karamchedu, Jehanabad etc.

On March 6, 1999 a young research scholar, Veeraswamy, from Hyderabad Central University, was picked up by Andhra Pradesh police, brutally tortured and killed. His body was burnt and not handed over to his family, in order to conceal any evidence of torture. It is difficult to forget the brutal elimination of Azad, who was ready for a democratic dialogue with the state. Similarly, Afzal Guru was denied dignity even in death and buried in an anonymous grave. The state was seeking some sort of closure for the victims of the Parliament attack in 2001 and also to score some political points. The secretive manner in which it proceeded to legally execute Afzal Guru is administratively wrong and smacks of constitutional impropriety. The Constitution provides the power of judicial review in order for courts to examine the reasons for the rejection of a mercy petition by the President. There are numerous cases in Indian history, where even after the rejection of a mercy petition, courts have exercised this power.3

In a vibrant democracy, the state and citizens share a dialogic space, wherein a moral consensus is arrived at. However, the Indian state is disregarding any possibility of negotiation, reconciliation and consensus building thus negating the dreams of the founders of the republic. "We the People", no longer exist, our voice is curtailed.

"But, because I tried to extend your liberties, mine were curtailed.

Because I tried to rear the temple of freedom for you, I was thrown into the cell of a felon's jail......

Because I tried to give voice to truth, I was condemned to silence.

You may say this is not a public question.

But it is !....."

~ Remembering Dr. Ramanadham*.

[*From a poster published by APCLC in memory of Dr. Ramanadham when he was killed in 1985] 


[1] N. Venugopal, 'A Humane Philosopher", in Kannabiran: A Life in Defence of Democracy and Dissent, Kalajyothi Hyderabad, 2011, p 27.

[2] International Conference against Death Penalty at Stockholm on Dec.10, 1977. For complete details refer, Death penalty mostly awarded to dalits and religious minorities, PUCL,

[3] Madabhushi Sridhar, 'An Act of Constitutional Impropriety: Kasab Hanging", November 23, 2012 The Hindu.


Dr. N. Sukumar teaches Political Science at Delhi University.(suku69-at-yahoo-dot-com).
Dr. Shailaja Menon teaches History at the School of Liberal Studies, Ambedkar University, Delhi. (shailaja-at-aud-dot-ac-dot-in).


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