Is television more powerful than SC?
By M J Akbar
The Supreme Court is rather less supreme than its nomenclature might suggest. It can pass a death sentence, but cannot execute it. The pun is unintended but apposite. Government dare not disobey the court, but subversion is always an option, which is why Afzal Guru has still not encountered his moment with justice.
Pace, or the lack of it, is the preferred form of subversion. It took one formal letter and 15 reminders over four years from the Union home ministry to the Delhi government to shuffle the Guru file towards its next legal step, the office of the lieutenant governor of Delhi. This is not snail mail. This is blackmail.
What fear, or perception of fear, persuaded the Congress government in Delhi to delay the death sentence of Afzal Guru? As ever, there is someone who drops a clue; as usual, it has been dropped by mistake. When the Delhi government did activate due process, about four years too late, on May 18, its official spokesman told media, "The government…does not have any objection (to the death sentence). But the Centre must examine the law and order implications if the death sentence is executed."
What could the phrase "law and order implications" mean? Did the official imply that Delhi's citizens would erupt in anger, destroy public property and bring the capital to a halt because they were livid at the execution of a convicted terrorist? Or did he believe it would lead to a massive invasion by Guru's fellow terrorists? Terrorists are not waiting for a file to crawl from point A to B; Guru's life, or death, is immaterial to their programme. Their summer infiltration from bases in Pakistan-occupied Kashmir is in full flow. There are near-daily reports of firefights and battles with the Army in Kashmir. Stockpiles of arms have been discovered this week during combing operations around Kupwara.
What, then, was the anonymous but widely quoted Delhi official so anxious about? Shall we mention what he left unmentioned? Was he warning the Centre that Indian Muslims would react by instigating violence, and the very prospect was sufficient to terrify the mighty government of the Union of India into frozen chicanery?
This is communal and racial profiling at its worst. In effect, the Congress government is saying that Indian Muslims treat a convicted terrorist as their icon. If this is the secret reason why Afzal Guru is still alive, then Delhi has lost its sanity.
Chidambaram could have activated the Guru file at any time during the last 18 months he has been home minister; all he had to do was pick up the phone. It isn't as if the government of Delhi is based in Pakistan, and needs periodic dossiers on Afzal Guru. Chidambaram did not do so because he did not want to do so. Nothing happened for four years, and lots more of nothing would have happened were it not for the public reaction to the Kasab verdict. Even as Indians cheered (including, since the two blindsided governments of Delhi appear not to have noticed, in Mumbai's Muslim areas) they were also reminded of the fact that an earlier Kasab was sitting comfortably in jail because the government had lost its nerve. Their anger was evident.
It was only a question of time, and intent, before someone asked RTI for the documents, and since they were not secret, they entered public space. A TV news channel got them, and pointed out the obvious: Guru was the beneficiary of political indecision. When public opinion prodded the government in the pants, the dormant file began to spurt.
Governments protect who they will, and punish those they want to. The system has collaborated to keep Sajjan Kumar beyond the reach of judgment a quarter century after the Sikh riots of 1984. This week's reason for another pause in the judicial process is a typo. The CBI pointed out, virtuously, that Section 339 has been mentioned instead of Section 449 in the order on filing of charges. This is where we are after 25 years, discussing the order on filing of charges. Where are all the award-winning human rights activists who pursue perpetrators of riots? Maybe they will turn up on the 30th anniversary of 1984.
We have a law now that prevents underage children from being sent to prison. By 2014 they should have a law in place by which anyone above retirement age could serve out a sentence in his personal air-conditioned drawing room. That would keep Sajjan Kumar safe till God was ready to pass His judgment.
Unless, of course, the Ultra Supreme Court of Television intervened, and even that might be too little, too late in the case of Sajjan Kumar.
Times of India Column: May 23, 2010