LAW AND KILLING IN THE MAQBOOZA KASHMIR [INTERNATIONALLY
DISPUTED AREAS OF JAMMU AND KASHMIR (IDA: JK)]
BY DR ABDUL MAJID SIRAJ
Laws and killing
‘Hang them to the point of death’. The pronouncement of capital punishment is forceful and ‘If by any chance they survive the first hanging then hang them again with a stronger rope till they die; well and truly. The other end of extreme killing is when some members of law enforcing agencies are hardwired to open fire and kill in cold blood. If these deaths are perpetrated by persons less than 18 years old then laws customary in local or constitutional framework derived from legislation or international laws from conventions and treaties will be invoked and punishment of the killing decreed that will not include hanging.
In this wavelength included are murders committed for political reasons. There are spiritual and ethical sanctions on killing of any individual for whatever reasons that are well known and documented. The overarching written laws that hold the world together in harmony decree sentences in very strong language for any attempt to kill another human being by an individual or a state. Indian laws endorse that view. The Supreme Court of India promulgated on Aug. 8, 2011 their concern on this subject, saying ‘Blood thirsty persons who stage fake encounters deserve nothing less than death… for cold blooded murders’.There is a widely held opinion that Afzal Guru was executed in error both in legal and moral terms. Nevertheless he had a better deal than those killed in fake encounters where no sentence was pronounced and no relatives informed. In fake encounters the modus operando of killing is that they are forced to run and bullets pierce their back until they fall in a pool of their own blood. These victims have no warning of their fate or even a word of their crime for which they are punished. The dead bodies are then used to provide evidence of success in an engagement with insurgents.By chance or design the Apex Court assigned the Pathribal Kashmir fake encounter murder trial to the military courts, knowing well that the executors of these encounters were a part and parcel of Para-military establishment.
The first call on all humanity as they make progress in living on this planet is to safeguard the life of all member of the society. Right to life is guaranteed in Article 21 of the Constitution of India. It follows that if there is the slightest chance of an unlawful killing or miscarriage of justice, then the responsible agency or the State is culpable. Military was renamed as defense forces for protection of life and the total corpus of human rights laws were enshrined in the overarching world constitution of the Charter 1945.There is a strong international dimension covering right to life so that if a country defies norms of behavior as chartered under these conventions, the world will not accept their ignorance as excuse to perpetrate abuse on their subjects. There is a corpus of human rights law that decrees safeguards for life in the Charter (1945), ICCPR & ICESCR (1966) , Protocol -1 ( 1-14) Geneva Conventions, regional conventions like The African Charter on Human & People’s Rights (1981), American Convention on Human Rights (1969), Canadian Charter of Fundamental Rights. Europe stood very steadfast ever since the end of World War 11 that witnessed wreckage of human remains in millions. In a combined voice the convention on the Protection of life was adopted in 1950 in an exemplary manner with emphasis on ensuring a clean rule over people.
The EU Prison Rules in 1987 and Social Charter in 1961 were adopted to ensure humane treatment of prisoners. In order to pressure member countries to comply with safety and fair-minded treatment of prisoners, United Nations passed a resolution for the Minimum Standards on the Treatment of Prisoners in 1987. India is a signatory to this convention, therefore it was hoped that the treatment the prisoners receive and the care they get in Indian jails will be governed within these statutes. The jail manual of Tihar jail will have spelled these regulations.The capital punishment served to Afzal Guru would be a test case to ascertain the rules followed from the inception of the verdict to the time of ending his life.
A pertinent reference is made on the comment published by Harsh Mander director Centre for Equity Studies in Hindustan Times (Feb. 19, 2013) expressed as a ‘ scar on democracy’ to kill Afzal Guru is worth a scrutiny. It is now well known that Afzal Guru did not get effective legal counsel in the trial court. That resulted in his committal. The flaw in the legal process and its ramifications travelled up to the level of the Apex Court. Mander made a reference to Justice Krishna Ayer’s observation that capital punishment has a class bias and color bar.Why are people killed in the name of justice? It must have something to do with insecurity felt in an administration on the most effective way to administer criminal justice system so that recourse is made to archaic punishments as lex tallionis (eye for an eye) in adversarial justice system. People are still deprived of their life on the wisdom of deterrence to maintain social order. There is no evidence that capital punishment has worked and out of the total 190 countries 150 have abandoned capital punishment and the few that still have this punishment on their statute are some Islamic states, some American states and India. Even as days of barbarism have faded away with enlightenment, there are remains of medieval antics and vicious killing for retribution or inflicting pain with lashes on the back still practiced in the world.
Killing by hanging is not free from last minutes agony, when the odontoid process bone is fractured by the tilt backwards of the neck. The broken bone then impinges on the brainstem causing death. There are kinder ways to kill and in euthanasia sodium pentothal or similar is injected to induce sleep that at deeper levels becomes lethal. There is an urgent need for a rethink on the need for capital punishment and at the same time seek remedies for fissures in society that culminate in such tragedies.
Dr Abdul Majid Siraj WWW.kashmir-caselaw.com or majidsirajuk@yahoo.com
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