More than a decade later, let us ask, whose collective conscience was it after all? Not mine, certainly not mine. I was not even 10 when the Indian Parliament was attacked in 2001, and had just entered my twenties when Afzal Guru was hanged on February 9, 2013. Today, in my mid twenties, when I live this day, I keep wondering, whose collective conscience was it after all?
If we read the two sentences in tandem, it appears, prima facie, that Afzal was hanged because of something outside of his alleged crime. The gravity of the trauma undergone by the nation as a result of the Parliament attack was such that words had failed. The desperate judges, P. Venkatarama Reddi and P.P. Naolekar, at a loss for words, then found an answer to their dilemma: “the maximum punishment” of “capital punishment” (80).
Seen in this light, Afzal Guru was awarded the death penalty because the author(s) of the words pronouncing the verdict, the judges, were at a loss for words. Was Afzal Guru hanged because language had failed? Were his crimes so heinous that no language could describe them? This essay will not look at the technicalities of the case. These details have been examined and re-examined by legal experts umpteen times. This essay is on language: the language of the death penalty. Or maybe, it is on the inability of language to write of the death penalty; the inability of my conscience to write properly of Afzal Guru.
This inability of language is a recurring point that keeps coming up in the debate around death penalty in India. In this regard, let me bring to your attention two reports on the death penalty published by the Law Commission of India. The most recent is the Report No. 262 titled The Death Penalty (August 2015) which recommended that the state “take the first step towards abolition of the death penalty for all offences other than terrorism related offences” (217). But it had published an earlier report in October 2003 — Mode of Execution of Death Sentence and Incidental Matters. This report did not debate the larger question of retaining or foregoing the death penalty at all. Instead, it asked, what should the mode of execution be?
This report was occasioned by the Supreme Court’s observation that “physical pain and suffering which the execution of the sentence of death entails is also no less cruel and inhuman” (Bachan Singh vs. State of Punjab). It ran into a contradiction – to conceive a humane death that must also act as a deterrent.
Although initially the case of the death penalty is seen ahistorically in the report, a number of methods of capital punishment from a more recent history of punishment are catalogued, either in Christian states — burning at the stake (9) — or in Fascist states — the gas chamber (13). The association between terms such as “physical pain”, “suffering”, “inhuman”, with punishment, has a more recent history, of torture. This history begins with the Enlightenment in the eighteenth century, but more on that history later.
Through weird logic, the presumed ancientness of Indian civilisation is supposed to come to the rescue of the convicted at the “exact point of execution”. You may have made the assumption that the reduction of pain is in the interest of the person who receives it. But the Commission has another subject for whom the pain must be lessened. This subject is not a person but the abstract concept of Indian civilisation. Thus the collective, whether in the psychological form of the conscience, or in the form of a civilisation, is always a prime concern for the law.
Both Indian civilisation and the death penalty are ancient, but the latter is challenged by the “march of civilisation” (5), which occasions “evolving standards of human decency” (35). Here, the ancient civilisation of India must also face the demands of modernity, which makes for a certain “standard of human decency”. Thus the ahistorical, ancient past is a burden as well as a moment of pride. Even though the prevalence of the death penalty is ancient – it has existed since “time immemorial” – the very ancient benignity of Indian civilisation stands in contradiction to the practice.
The report also takes a comparative approach, saying that these standards are not universal but variable, and that their variance is in accordance with the “cultural and spiritual tradition of society” and its sense of “moral and ethical values” (35). Thus, on the one hand, there is the pressure of an international law of human rights which cites objective factors (such as the inhuman treatment of torture), and, on the other hand, the appalling failure of Indian civilisation to uphold those standards. Can the ancient Indian civilisation fall behind when “the standards of human decency are progressively evolving to higher levels” (35)? In order to make a compromise, the report suggests an alteration in the method of the applying death penalty – lethal injection must be allowed in addition to hanging by the rope (83).
When the trap springs he dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and at almost all executions one or more faint or have to be helped out of the witness-room… The bodies were cut down after fifteen minutes and placed in an antechamber, when I was horrified to hear one of the supposed corpses give a gasp and find him making respiratory efforts, evidently a prelude to revival. The two bodies were quickly suspended again for a quarter of an hour longer… Dislocation of the neck is the ideal aimed at, but, out of all my post-mortem findings that has proved rather an exception, which in the majority of instances the cause of death was strangulation and asphyxia (Report No. 187, 37 – 38).
But never a day passed by without the scare of Rashtriya Rifles and STF men harassing me. If there was a militant attack somewhere in Kashmir, they would round up civilians, torture them to pulp. The situation was even worse for a surrendered militant like me. They detained us for several weeks, and threatened to implicate in false cases and we were let free only if we paid huge bribes. Many times I had to go through this. Major Ram Mohan Roy of 22 Rashtriya Rifles gave electric shock to my private parts. Many times I was made to clean their toilets and sweep their camps. Once, I had to bribe the security men with all that I had to escape from the Humhama STF torture camp. DSP Vinay Gupta and DSP Davinder Singh supervised the torture. One of their torture experts, Inspector Shanti Singh, electrocuted me for three hours until I agreed to pay Rs 1 lakh as bribe. My wife sold her jewelry and for the remaining amount, they sold my scooter.
I did interrogate and torture him at my camp for several days… His description of torture at my camp is true. That was the procedure those days and we did pour petrol in his arse and gave him electric shocks. But I could not break him. He did not reveal anything to me despite our hardest possible interrogation. We tortured him enough for Gazi Baba but he did not break. He looked like a ‘bhondu’ those days, what you call a ‘chootya’ type. And I had a reputation for torture, interrogation, and breaking suspects. If anybody came out of my interrogation clean, nobody would ever touch him again. He would be considered clean by the whole department.
If the description of death by Warden Duffy is enough for Justice Bhagwati, why are these recollections by Afzal and Davinder Singh powerless? In a letter to his lawyer, Afzal said he could not make any of the points he wanted to in the court room. For words to have any relevance as per the law of the land, they have to be recorded during court proceedings. Since these words of Afzal are uttered elsewhere, they don’t find an ear in court.
Meanwhile, Justice P. Venkatarama Reddi and Justice P.P. Naolekar have been too traumatised to express the extent of Afzal’s crime in language. Who is responsible for this trauma? The jingle of Breaking News and the accompanying music of media trials. Who gets hanged? Afzal Guru.
It is interesting that the judges as well as Vinod K. Jose show an inability to face trauma. Jose says he could not bear to hear the torture details given by Afzal and asked another question. Who causes trauma to whom, depends on whom one is listening to. The judges, it seems, could not bear the trauma of Afzal the terrorist's crimes, while Jose could not hear his testimony of torture.
The memory of Afzal Guru, too, will be decided by the question of hearing. As a nation, whom did we choose to hear?
Whom do we feel sympathy for? What dictates our sympathy for another? Can I have sympathy for Afzal Guru, a man I have never met?
Justice Bhagwati says that a condemned person may not be thought deserving of sympathy, but a “civilised society” cannot fall back upon a “theory of retribution or retaliation” (39). If the kind of justice, then, is reformative, no reformation can be expected from a lifeless, mutilated body. What cheer do we derive from Afzal’s body, locked away in Tihar jail in Delhi?
Before the eighteenth century, it was believed that pain inflicted in the body did not belong entirely to the individual but to the community. From the eighteenth century, however, there was a shift in this attitude. The spectators also felt sympathy for the convicted. They “no longer felt the emotions the spectacle had been designed to elicit” (95) – the feeling of fear, writes Lynn Hunt, in her essay “Bone of the Bone”. Prior to the eighteenth century, in Christian states, the pain of the condemned also had “higher religious and political purposes of redemption and reparation of the community” (94). The emerging individualistic, secular view saw pain as belonging “only to the sufferer in the here-and-now” (97), not to the entire community. So the pain one undergoes cannot be said to expiate the entire community, as it could in the traditional view. Thus, there is a transformation in the idea of the convict where the witness feels sympathy even for the convicted at the sight of their conviction and subsequent damnation. This is why returning Afzal’s body back to his family in Kashmir is a problem for the Indian state. An outpouring of sympathy brought the valley together when Burhan Wani was killed last year. It was not the kind of passive sympathy that Hunt writes of in her study, but a more active solidarity that unites people in shared grief. Another lifeless body that faced the noose at the hands of the same judicial system lies next to Afzal's in Tihar, that of Maqbool Bhat, a man remembered in Kashmir as a freedom fighter.
When Afzal gets killed and the entire collective's conscience is said to be satisfied, we are, in fact, drawing from a pre-Enlightenment Christian understanding of death, one that prevailed prior to the eighteenth century. Capital punishment is the quantum of punishment for a crime that caused such trauma that it “cannot be described in words”.
why did you go alone? — now remain alone a few days more!