Why I have Spoken Now on Afzal Guru's Hanging

(Dr. Shashi Tharoor is a two-time MP from Thiruvananthapuram, the Chairman of the Parliamentary Standing Committee on External Affairs, the former Union Minister of State for External Affairs and Human Resource Development and the former UN Under-Secretary-General. He has written 15 books, including, most recently, India Shastra: Reflections On the Nation in Our Time.)

It doesn't take much to stir up a controversy in our media. As I've learned repeatedly, a simple tweet is often enough.

Asked by a tweeter what I thought of the statement issued by five Congress MLAs in Jammu and Kashmir in which they described the hanging as a "mistake", I replied to the questioner: "I think the hanging was both wrong & badly handled. Family should have been warned, given a last meeting & body returned." This resulted in a veritable paroxysm of outrage on television and a couple of thousand hate tweets in response, accusing me of everything from molly-coddling terrorists to treason.

The debate is taking place on the second anniversary of Afzal Guru's hanging, which has occasioned protests all over the Kashmir Valley, at a time when the process of government formation in the state is yet to be concluded. The Kashmiri Congress legislators, in their statement, had said, according to ndtv.com: "The demand for clemency for Guru was justified and his mortal remains should be returned to his family. The decision to not allow his family members to meet him one last time was also a mistake." This was portrayed by the media as an exercise in winning the support of an independent MLA, Engineer Rashid, for the Rajya Sabha candidacy of Leader of the Opposition Ghulam Nabi Azad, and did not occasion half as much of an uproar as my own seeming endorsement of it a day later.

If I felt this way, some have reasonably asked, why did I not say so publicly when it happened two years ago and I was serving in government? Simply put: I was not free to do so. I was a Minister of State in the Human Resources Development Ministry, and my work had nothing to do whatsoever with that of the Home Ministry, which handled such matters. It would have been a severe violation of governmental norms to express a divergence of opinion on matters concerning any other colleague's portfolio. A statement by a Minister of State for Home publicly challenging a decision of the HRD Ministry would have been just as inappropriate.

Since I had nothing to do with the Afzal Guru decision and was involved in no official forum where I could have participated either in making the decision or in discussing it formally afterwards, I kept my views to myself, expressing them at the time only in private conversation.

India is a country of laws; no one can argue that the legal process was not fully followed, all the way up to the Supreme Court. It is indeed true that it was only after all judicial processes had been exhausted that Afzal Guru was hanged. It is not my place to question the judgement of the Supreme Court - nor, for that matter, that of the President of India, in refusing to grant the clemency that was sought on Afzal Guru's behalf. Whether Guru's actual role as an accomplice - not one directly responsible for the assassinations of our fourteen martyrs in the Parliament complex - warranted the death penalty is also not a matter for individual citizens to determine.

Those who, under our Constitution, are competent to make this decision have made it, and I don't challenge their right to do so either.

However, while we are on the subject, it is not irrelevant to raise the issue of whether the continued use of the death penalty reflects well on us as a society. Since my days in the United Nations, I have been a considered critic of the death penalty, and in this I reflect the view of a majority of the world's peoples.  United Nations General Assembly resolution 62/149 of 2007 calls on States that maintain the death penalty to suspend its use, establish a moratorium on the use of the death penalty with a view to its abolition, and in the meantime, to restrict the number of offences which it punishes - and to respect the rights of those on death row.

The resolution has subsequently been repeatedly reaffirmed by overwhelming majorities, and UN Secretary-General Ban Ki-Moon, echoing his predecessor Kofi Annan, has declared as recently as July 2014 that "the death penalty is a cruel and inhumane practice" that "has no place in the world of the 21st century." In Ban's words, "The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process" -  a view I happen to share.

But let's not go there either: I can just imagine our denizens of the right, especially on social media, frothing at the mouth to denounce the very notion that liberal international pieties can apply to the grim fight against terrorism on our soil.

What about the rest of my objection? Afzal Guru was hanged without his family being notified beforehand; his wife and young son were not given an opportunity to meet him for one last time before his execution; and his body was not returned home for burial.  Every one of these is standard procedure in the many other cases where India has carried out a sentence of death. Not adhering to these well-established practices was wrong, not just because it hurt the sentiments of Guru's family, but because it was violative of our own values as a society. In behaving the way we did, we betrayed ourselves -- as a nation, a society and a civilization.

I am sure various arguments can be adduced for these actions. The notification to the family was sent in the usual way, but reached them two days after the execution had been carried out. No meeting was possible since the decision to proceed with the execution was taken swiftly once the President had rejected clemency and before the family had applied to see him. The body was not returned for fear of creating unrest in the Valley and allowing his grave to become a potential locus for future separatist agitation. I understand all these arguments: in my view they are just not good enough to override our duty to ourselves as custodians of India's civilizational values.

Former Prime Minister Vajpayee once declared he intended to deal with Kashmiri separatism on the basis of insaniyat - humanity. Did our conduct reflect our own insaniyat? Or has our outrage at terrorism led us to something closer to insanity?

I am a strong advocate of counter-terrorism, while stressing that it must not become an all-embracing concept that is used to cloak, or justify, violations of human rights.  Indeed any sacrifice of fundamental freedoms in the struggle against terror will ultimately be self-defeating.  As my old boss Kofi Annan used to say, those who are willing to give up liberty for security will end up with neither security nor liberty. In India's democratic society there are roadmaps for non-violent dissent. Power relations between ethnic, linguistic and religious groups and the State are mediated by the rule of law. When some people dissent, and even resort to violence, there are mechanisms to deal with them justly. And the system offers hope for change -- and the means to change --without the need for violence.

In all this, it is vital to respect human rights. As understandable fear and suspicion dominate the law-enforcement response, human rights, the presumption of innocence, the rejection of religious or ethnic stereotyping, must not be jettisoned in the war against terrorism. The response to terror must not place in jeopardy all the hard-fought civil liberties and protections that have come to distinguish Indian civilisation and that are enshrined in our Constitution.

As Mahatma Gandhi used to say, you judge a society by the way it treats its weakest members. No one is weaker or more powerless than a hapless prisoner on death row. That is why the State, in a final gesture of decency, treats him humanely, allows him to see a family, receive a priest's benediction, and choose his own last meal. These may make little difference to a man who is about to be hanged, but they show us as a decent nation, capable of compassion even while carrying out the ultimate punishment.

India has years of experience of dealing with terror without undermining the very values the terrorists seek to destroy. We must ensure that in attacking terror, the cure does not become worse than the disease. Building human rights safeguards into our counter-terrorist strategies and conduct is absolutely essential.

The very fabric of India's democratic governance rests on the rule of law. It is vital that our war on terror not become a war against justice, liberty and decency, but rather a war to preserve justice, liberty and decency for all.

And I say this for India's sake, not for Afzal Guru's.

Disclaimer: The opinions expressed within this article are the personal opinions of the author. NDTV is not responsible for the accuracy, completeness, suitability, or validity of any information on this article. All information is provided on an as-is basis. The information, facts or opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.