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Tuesday, May 17, 2022

What Supreme Court said when it upheld death for Afzal Guru

Three years after Parliament attack convict Afzal Guru was hanged in Tihar Jail, his execution continues to fuel powerful debates, protests, charges of ‘sedition’, and accusations of being ‘anti-national’.

Updated: February 26, 2016 10:47:57 am
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On Legal Assistance

Counsel for Afzal Guru said he was denied proper legal aid. He argued that counsel appointed by the court as amicus curiae was thrust on him against his will, that the first amicus made concessions without his knowledge, and the counsel who conducted the trial did not diligently cross-examine the witnesses. As such, Afzal’s right of legal aid flowing from Articles 21 (Protection of life and personal liberty) and 22 (Protection against arrest and detention in certain cases) was violated.

Court view: The Bench said it found “no substance in this contention”, and gave specific reasons for its view. It ruled that the trial judge had done his best to help Afzal with legal aid, and the counsel who defended him was not inexperienced, ineffective, or casual in his job. The court backed the High Court’s view that the criticism against the counsel appeared to be an afterthought raised at the appellate stage. It agreed that the appellant was without a lawyer from the time of his arrest until May 17, 2002, but said no proceedings besides the extending of remand and furnishing of documents had taken place during this period.

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On Afzal’s Confession

The Bench considered Afzal’s confessional statement to Delhi Police Special Cell ACP Rajbir Singh — who took over the investigation on December 19, 2001, the same day that POTA was brought against the accused — which detailed Afzal’s joining the JKLF in 1989-90, arms training in PoK, and subsequent return to India. According to the statement, he was motivated to join the jihad for Kashmir’s liberation by one Tariq of Anantnag, who also introduced him to proclaimed offender Ghazibaba, who, according to the confession, apprised him of the mission to carry out attacks on institutions like Parliament and embassies, and asked him to find a safe hideout for the fidayeen in Delhi. Afzal came to Delhi with Mohammed, one of the Jaish-e-Mohammad fidayeen, and on the night of December 12, he and co-accused Shaukat Guru and SAR Geelani visited the five Pakistani terrorists at their hideout. Mohammed told them about the plan to attack Parliament the following day, and gave Afzal Rs 10 lakh for Shaukat, Geelani and him, and a laptop to deliver to Ghazibaba. According to the confession, Afzal and Mohammed remained in touch, and on December 13, Afzal got a call on his mobile phone 98114-89429 from Mohammed’s phone 98106-93456 asking him to watch TV and inform him about the presence of VVIPs at Parliament House.

COURT VIEW: The court considered in detail the “crucial question… whether the confessional statement… could be safely acted upon”. It concluded that a delay by Afzal in refuting and retracting the confession could not in itself impart credibility to the confession. It also rejected the contention that inconsistencies in the grounds for Afzal to retract could give rise to “an inference that the confessional statement was true and voluntary”.

On Circumstantial Evidence

Circumstantial evidence against Afzal included the following: he knew the dead terrorists and identified their bodies; he was in frequent telephonic contact with the terrorist Mohammed, including three calls that the latter made to him minutes before the attack; the various locations used by the fidayeen in Delhi before the attacks; the various purchases made by them, including chemicals, dry fruit, a Yamaha motorcycle and mobile phones; and the laptop (along with its contents) that was found in Afzal’s custody.

COURT VIEW: The court said these circumstances clearly established Afzal’s association with the terrorists “in almost every act done by them in order to achieve the objective of attacking the Parliament House”. “Short of participating in the actual attack,” Afzal, the court said, “did everything to set in motion the diabolic mission”.

The Verdict

“The gravity of the crime… is something which cannot be described in words. The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India… can only be compensated by giving the maximum punishment… The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence.”


Dec 13, 2001: Five terrorists enter Parliament House complex and open indiscriminate fire, killing nine people and injuring over 15

Dec 15, 2001: Delhi Police pick up Afzal Guru from Jammu & Kashmir. SAR Geelani of Delhi University’s Zakir Husain College is picked up and later arrested. Two others, Afsan Guru and her husband Shaukat Hussain Guru, picked up later

Jun 4, 2002: Charges framed against Afzal Guru, Geelani, Shaukat Hussain Guru and Afsan

Dec 18, 2002: Trial court sentences Afzal, Geelani and Shaukat to death, lets off Afsan

Aug 30, 2003: Jaish-e-Mohammad leader Ghazi Baba, prime accused in the attack, is killed in an encounter with the BSF in Srinagar. Three other militants too are killed in the encounter

Oct 29, 2003: Delhi High Court uphold death for Afzal, acquits Geelani

Aug 4, 2005: Supreme Court confirms death for Afzal, commutes Shaukat’s sentence to 10 years’ rigorous imprisonment

Sep 26, 2006: Delhi court orders Afzal to be hanged

Oct 3, 2006: Afzal’s wife Tabasum Guru files a mercy petition with President APJ Abdul Kalam

Jan 12, 2007: Supreme Court dismisses Afzal’s plea seeking review of his death sentence, saying “there is no merit” in it

May 19, 2010: Delhi government endorses capital punishment awarded to Afzal by the Supreme Court

Dec 30, 2010: Shaukat Guru released from Delhi’s Tihar Jail

Dec 10, 2012: Home Minister Sushilkumar Shinde says he would examine Afzal Guru’s file after Parliament’s winter session concludes on December 22

Feb 3, 2013: President Pranab Mukherjee rejects Afzal Guru’s mercy petition

Feb 9, 2013: Afzal Guru hanged

— Based on Supreme Court judgment delivered on Aug 4, 2005, upholding the death sentence for Afzal Guru

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