The politics of a hanging: Kamini Jaiswal

Interview with Supreme Court advocate

On Saturday morning, Mohammad Afzal Guru, the Jaish-e-Mohammad terrorist convicted in the December 2001 Parliamentary attack case, was quietly executed in Tihar jail after President Pranab Mukherjee rejected his mercy petition. Supreme Court advocate Kamini Jaiswal speaks with Veenu Sandhu about the hanging and her views on the death penalty

What do you think of the government’s decision to hang Afzal Guru in utmost secrecy, without letting a word of it get out?
This is absolutely shocking. It amounts to cheating. They didn’t even bother to inform his family. How could they do this? They are saying that the president disposed of his mercy petition five days ago, on February 3. But even the petitioners didn’t know that his mercy plea had been rejected.

This is the second such execution within a span of two months. In November, 26/11 terrorist Ajmal Kasab too was hanged secretly. Then how is this different?

Kasab’s execution was a different case. Kasab did not have family here. (Afzal Guru hailed from Sopore in North Kashmir). The least they could have done was inform his family, his wife. And then they went ahead and buried his body inside Tihar jail. They should have handed the body over to the family. What was the need for this great secrecy?

What if that caused a law and order problem?
The state should be ready to deal with it if there is going to be a law and order. Look at what’s happening in Kashmir now. Kashmir has been so quiet for months. And now the government has gone ahead and done this. It takes one step forward and 20 steps backward. (The whole of Kashmir valley was placed under curfew after the hanging. The Srinagar-Jammu national highway was closed for the day. Police and paramilitary personnel were deployed in sensitive areas and outside the homes of separatist leaders).

Do you think this was a political decision?
Of course, this was a political decision. They speeded up the hanging and went about it in this secretive manner for political mileage.

There is a huge debate, within and outside the legal community, about the death penalty. What is your view?
I am totally against the death penalty. How can a state take a life? It’s a myth that it acts as a deterrent. How can it act as a deterrent, particularly in cases such as this one? Will a terrorist be deterred because of the death penalty? He comes with this thing in his mind that he is, in any case, going to die. When those people attacked Parliament, they were already dead that day. In other cases too, statistics prove that capital punishment is not a deterrent to crime.

Do we need to relook the issue of capital punishment?
Yes, we do. And we are revisiting it. The three-member committee, led by former Supreme Court chief justice, J S Verma, which was set up to amend criminal law to ensure harsher punishment for crime against women and for quicker trial in such cases, also categorically rejected capital punishment for rape. But, the government chose to ignore it and included the death penalty for rape. (It’s the first time that the death penalty will now apply to rape cases). Several advocates and women’s groups had objected to this. (The Justice Verma Committee, while recommended harsher punishment for rape, had said that the death penalty was a “regressive step” and it “may not have a deterrent effect”. Many advocates and women’s right groups also said that like most other countries, India too needs to move towards eliminating the death penalty).