South Asia Terrorism Portal
Rare Justice Ajai Sahni Editor, SAIR; Executive Director, Institute for Conflict Management
The death penalty, in Indian jurisprudence, is awarded only in cases that are deemed to be the 'rarest of the rare'. On December 18, 2002, a special court at Delhi declared that three of the conspirators in the attack on India's Parliament on December 13, 2001, fell into this exclusive category, and sentenced Mohammad Afzal, Shaukat Hussain Guru and S.A.R. Geelani to pay the ultimate penalty for, among other charges, 'waging war against the state'. The fourth accused, Guru's wife, Afsan Guru, was sentenced to five years rigorous imprisonment for concealment of 'prior knowledge' of the planned terrorist act. The conviction is seen as a major breakthrough and a test case on India's 'controversial' counter-terrorism legislation, the Prevention of Terrorism Act, 2002 (POTA). The judgement itself falls into the category of the 'rarest of the rare' on another count: it is very seldom that India's sluggish justice system succeeds in bringing terrorists to book - and the conviction of the accused in the Parliament Attack case in just over a year after the event is extraordinary in a system in which criminal trials often drag on for decades at end. It is useful, in this context, to take a quick look at the judicial record in Jammu & Kashmir: over 33,693 persons have been killed in the conflict in the State (since 1988 and till December 22, 2002); this includes 12,203 civilians and 4,575 security forces (SF) personnel. For these and many thousands of other crimes, precisely 13 convictions have been secured over more than thirteen years of terrorism in the State - eight of them on relatively minor charges, such as illegal border crossing or illegal possession of arms and explosives, and only five, in a single case, involve an act of terrorism resulting in death. Not a single sentence of death has been awarded in any case of terrorist violence in Jammu & Kashmir since terrorism took root in the State in 1989. These astonishing numbers alone cannot convey the enormity and the horror of the situation that prevails on the ground. To say that 14 civilians were killed by terrorists in the last week, for instance, does not communicate - and indeed conceals - the fact that this number includes three young children who were murdered in cold blood in the presence of their father (who was also injured); that it also includes four unfortunate women who were dragged out of their homes and killed - two shot dead at point blank range, and the other two brutally beheaded by their fanatical tormentors, either to avenge their alleged connection with 'kafirs', or for their failure to wear the veil as decreed by the jehadis. Harsh as it may sound, these victims of terror were, in some perverse sense, fortunate that death came swiftly. Others have not been that lucky. Among details available with the Institute for Conflict Management, of over 667 atrocities committed by terrorists against women and children, are many utterly gruesome accounts of gang rapes, torture and mutilation over days at end, culminating in a death that would have come as a relief to the victims. The headline of a national daily spoke of the December 13 attack on Parliament having been 'avenged' by the conviction of the four accused. It is not clear whether any significant proportion of these thousands of other outrages will ever be similarly 'avenged' by the judicial process. The decision in the Parliament attack case demonstrates that the Indian justice system can respond when it chooses to. Earlier, in the case of the assassination of then Prime Minister Indira Gandhi, a conviction had been secured within fifteen months. The case of Rajiv Gandhi's assassination was more complicated, and judgement came after over five years in Court - but the process was more or less inexorable. There have been other cases - usually in areas not deeply afflicted by terrorism - where the investigative and judicial process has yielded just punishment against perpetrators of terrorist excesses. By and large, however, what is witnessed has been described by K.P.S. Gill, who led the successful campaign against terrorism in the State of Punjab, as a "complete abdication, indeed collapse, of judicial accountability in situations of persistent mass violence and terrorism." It is useful, in this context, to note that, even where prosecutions were launched against terrorists under the Terrorist and Disruptive Activities (Prevention) Act (TADA) - the much-maligned precursor of the present POTA, which was allowed to lapse in 1995 - the conviction rate was under two percent. By contrast, the conviction rate under a legislation with comparable provisions, though it is primarily directed against organised crime and not terrorism, - the Maharashtra Control of Organised Crime Act (MCOCA) - has been as high as 78 per cent. The 'deterrent' impact of counter-terrorism legislation cannot be secured by judgements in an occasional high profile case, where thousands of daily excesses and brutalities go entirely unpunished. Unfortunately, as Gill notes again, "The present judicial system is simply incapable of securing the levels of efficiency and delivering the quality of justice that are required to counter and contain the enormous threats that currently exist to national security…" Nor, indeed, has the attack on Parliament been quite 'avenged' by the present judgement. The five primary perpetrators of the attack had been killed during the operation itself. The four convicted in the case were arraigned for their role in facilitating the strike and providing a safe haven to the fidayeen(suicide) squad. The primary conspirators, however, remain entirely outside the pale of law. The chargesheet mentions Pakistan's Inter Services Intelligence (ISI) as the chief instigator of the plot, which was executed by cadres of the Pakistan-based Jaish-e-Mohammed (JeM) and Lashkar-e-Toiba (LeT). The chargesheet indicts JeM chief, Mohammad Masood Azhar as the 'mastermind' behind the plot, and two other JeM 'commanders', Ghazi Baba and Tariq Ahmad are said to have been responsible for its execution. Ghazi Baba and Tariq Ahmad have been declared proclaimed offenders. Masood Azhar is on India's list of 'twenty most wanted' that had been handed over to Pakistan in the wake of the attack on Parliament. Azhar was recently released from 'house arrest' by a Pakistani court. There is little prospect of any of the three being brought to justice in the foreseeable future. The special court's judgement is, moreover, not the end of the story even as far as the four convicted are concerned. There is certain to be an appeal in which a wide range of procedural and evidentiary issues will be raised, and the outcome is entirely unpredictable. It is useful to note that, in the Rajiv Gandhi assassination case, 26 persons had been sentenced to death by the trial Court. Eventually, however, 19 of these were acquitted by the Supreme Court, and another three had their sentences commuted to imprisonment for life. "If judicial action is to have any credibility among the people, and any deterrent impact," Gill notes, "especially on the hardened cadres of terrorist and organised crime groupings, the link between crime and punishment must be swift and inexorable." It is clear that this is far from the case in the Indian situation, and immensely more so in areas seriously afflicted by the scourge of terrorism.