Tempering justice with compassion

Self righteousness is the enemy of good sense. The reactions throughout India to the confirmation of the death sentence on Mohammad Afzal Guru bear this out in ample measure. The BJP is demanding — nay ranting — that the president must turn down his plea for clemency because the attack on Parliament in 2001 was an attack on the Indian state.

At the other extreme an organisation in Kashmir is collecting signatures for a petition to President Kalam urging clemency on the grounds that Afzal did not receive a fair enough trial to sustain a death sentence. The sheer strength of the public and political reaction has provoked the Supreme Court into making yet another, and this time truly unwarranted, incursion into the domain of the executive.

It has in effect voiced a lack of confidence in the President of India and asserted that even his grant, or denial, of clemency will be subject to judicial review. In short, if the Supreme Court has its way we will henceforth be ruled not by Parliament and president but by a bunch of non-elected judges.

In this Babel of self serving tongues, we have lost sight of one fundamental truth: for the first time in its history all of Kashmir, from the Congress chief minister, to the leaders of the PDP and the National Conference, to the most irredentist militant, is united in demanding, not that Afzal Guru should not be punished, but that he should not be given the death penalty.

This unity stems from the fact that Kashmiris do not consider him to be a murderer, let alone the bestial kind that deserves a penalty reserved for the 'rarest of rare cases'. Even those in Kashmir who believe that their long term interest lies squarely with the Indian union, consider him to be an insurgent, a misguided one perhaps, but an insurgent nonetheless. And since the dawn of independence, the Indian state has treated insurgents very differently from ordinary murderers.

Hanging Afzal would be repeating the mistake that Mrs Indira Gandhi's government made on the 11th of February 1984, when it hanged Maqbool Butt. Butt's hanging started the train of events that led to full blown militancy in 1989. Yassin Malik, Javed Mir and scores of armed militants have testified, times without number, that it was Butt's hanging that drew them into separatist politics.

Azam Inquilabi, the first chairman of the United Jihad Council decided to cross the 'Line' after Butt was hanged. The ISI began to get its first stream of trainees for an armed insurgency in Kashmir within months of the hanging. That stream developed into a flood after the 1987 Kashmir elections.

Today, Kashmir is a powder keg. Until the other day few Kashmiris even knew who Mohammad Afzal was. Today he is their hero. If Afzal is hanged, everything that has been accomplished through 17 years of counter-insurgency, two manifestly free and fair elections, three years of Mufti Sayeed's 'healing touch', Mr. Vajpayee's repeated offers of a cease fire and a hand of friendship, Dr. Manmohan Singh's people-centered approach, and the intervention of scores of interlocutors, will come to naught.

Within weeks of the hanging we will be faced with a full blown indigenous insurgency once again, one, which will unite indigenous militants and Pakistan-based Jihadis for the first time.

To many in Delhi, this warning is alarmist, if not unpatriotic. But patriotism is a cheap virtue, and never more so than when it dons the mantle of jingoism. Few, if any, of the self-proclaimed defenders of the majesty of the Indian state, have walked the streets of Srinagar, let alone the by-lanes of the villages and smaller towns. Fewer still have sat or supped with, the new generation of university, and post-university, youth in whom the danger resides. Were they to do so they would see a new generation of insurgents in the making.

I had the opportunity to observe members of this estranged elite at a recent conference in Srinagar, organised by the Delhi-based Indian Social Institute. It soon became apparent that a significant number of the educated, middle class, urban youth of the valley has not welcomed the peace process. It has spent its entire life in the shadow of the 'freedom struggle'.

It believes , implicitly and uncritically, in the irredeemable cruelty of the Indian armed forces and the Indian state. It does not want to be a part of India and believes that Pakistan, and Musharraf in particular, has betrayed Kashmir.

The freedom struggle had given meaning to the lives of even those who did not actively participate in it, for it had allowed them to live on the adrenaline of high ideals and the romance of the armed struggle. Today they are in danger of losing their 'fix'.

As I watched the play of expressions on their faces, their general surliness and their openly expressed contempt for India, and for the leaders who were sitting on the dais, I realised with a stab of fear that I was looking at what could easily become the next generation of militants. These were rebels without a cause, looking for a new cause to adopt. It would take very little to make them adopt a millenarian vision of Islam and join the ranks of the Al Qaeda and its offshoots.

The insight gained at the conference enabled me to grasp the significance of a number of things that I had subconsciously noticed in recent visits to Kashmir, but discounted. I realised, quite suddenly, that this new generation of youth was absent from the offices and meetings of the Hurriyat. The generation of youth that had picked up arms in the early '90s was now in its late '30s. It had learned the hard way that the gun resolved nothing. And it was tired. While its members had been marking time waiting for the Indian government to make up its mind on whether it would negotiate with them or ignore them, another generation of youth had arrive at that most volatile age where the Yassin Maliks, the Javed Mirs and the Abdul Majid Dars had been quarter of a century ago.

Among those who are keenly aware of the danger that the new generation poses is Azam Inquilabi, now in his early '60s, who is virtually the patron saint of the armed struggle in Kashmir. During a conversation in June he told me, "We were the generation of the '60s. Yassin and others were the generation of the '80s. Today another generation is ready to take its place and for the past several months, the increase in strong-arm tactics has been making it more and more difficult to control them. …Delhi must not let the peace talks fail. If they do, it will be impossible to hold these young people back".

Today, one act of what they perceive as vindictiveness on the part of the Indian state could suffice to push them over the brink. But by the same token, one act of magnanimity could crack the armour of self-righteousness in which they have cocooned themselves.

Commuting the death penalty for Afzal in to life imprisonment does not mean a pardon as spokesmen of the BJP keep yelling and screaming in front of TV audiences, in an apparent show of "patriotism". It only means that Afzal will serve life in prison. If this is not deemed to be a harsh enough punishment, then by all means let us redefine a life sentence to prevent people from getting out in 15 years. But the death penalty is no a substitute for a defective law.

* The author, a noted analyst and commentator, is a former editor of the Hindustan Times, The Economic Times and The Financial Express, and a former information adviser to the prime minister of India. He is the author of several books including, The Perilous Road to the Market: The Political Economy of Reform in Russia, India and China, and Kashmir 1947: The Origins of a Dispute, and a regular columnist with several leading publications.

(The author's articles can be read at www.premshankarjha.com)