SC on Afzal Guru hanging

Was the Parliament attack case really a rarest of rare case, where the convict Afzal Guru deserved a death sentence? A section of legal experts and human rights defenders believe, even though attack on an icon of democracy falls under the rarest of rare category, the Afzal at the most was a conspirator unlike Ajmal Amir Kasab, who was a perpetrator. Further, while delivering the final judgement, Supreme Court while finding loop holes and lacuna in investigations, relied on the doctrine of “satisfying the collective conscience of the society”.

In its over  300 page judgement the apex court said, “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.” Commenting on the judgement, noted legal expert AG Noorani believes the apex court t has used emotional language. But the court in its Aug 4, 2005, judgment added: "The conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment prescribed under Section 302 IPC (Indian Penal Code)."

Either death sentence or imprisonment for life is the punishment prescribed under Section 302 of the IPC. The judgment delivered by Justice P. Venkatarama Reddy and Justice PP Naolekar had also said that Afzal's case has no parallel in the history of Indian Republic, and that it presents us in crystal clear terms, a spectacle of rarest of rare cases.

“The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperilling the safety of a multitude of peoples representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity," it added.

The court said the gravity of the crime conceived by the conspirators to cause enormous casualties and dislocate the functioning of the government "cannot be described in words".

"The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this treacherous act," it added.

"The appellant (Afzal Guru), 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," the apex court ruled.

"In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial court and the high court," the judgment said.

"The collective conscience of the society will be satisfied only if the death penalty is awarded to Afzal Guru," the Bench had said.

While taking away his right to life, the court had said the manner in which he conspired to wage war against the nation and the support he extended for carrying out the criminal conspircay made him a "menace to the society".

The trial Court had awarded death penalty to Shaukat, Guru and Geelani while sentencing Afsan to five years imprisonment for their role in the December 13, 2001 terrorist attack on Parliament which had led to mobilisation of troops on the Indo-Pak border and brought the two countries on the brink of war.

The Delhi High Court had upheld the death penalty to Afzal and Shaukat under Sections 302 (murder), 121 (waging war against the nation) and Sections 3(2) and 4 of POTA but had acquitted both Geelani and Afsan.