By
Dr. Paramjit Singh Sahni & Shobha
Aggarwal
In
the next session of Jammu and Kashmir assembly scheduled to start on 18 March,
2015 the issue of return of Afzal Guru’s mortal remains is expected to be debated.
Afzal
Guru, convicted in the attack on the Parliament House, New Delhi, India in 2001
was clandestinely hanged to death with in the precincts of Tihar Jail, Delhi on
the morning of 9 February, 2013. His family was not kept informed about the day
and timing of the hanging; neither were family members allowed a last visit to
meet him. It is public knowledge that Afzal was not provided proper legal assistance;
there was no foolproof evidence against him. Besides, out of the convicts on
the death row he was singled out of his position (said to be twenty-eight) largely
due to the pressure exerted by the ultra nationalist party, BJP and the Sangh
Parivar. It was purely a political decision by the Congress. His mercy petition
was rejected by President Pranab Mukherjee a few days prior to his hanging. He
had been on the death row for nearly eight years. The Supreme Court had
sentenced him to death on 4 August, 2005 to satisfy the “collective conscience
of the society”. There were wide spread and continuous protests in the Kashmir
valley. Curfew had been clamped for several days in all ten districts of the
valley to prevent people from expressing their sorrow and anger. The army was
put on high alert. The print and audio visual media were subjected to a clamp
down for days. Telecommunication, cable T.V. services and internet was blocked.
Afzal
Guru’s wife and family members have been persistently making a strong plea for
the mortal remains of Afzal Guru to be returned. The Indian state has stubbornly
refused to pay heed to this request. Thus Afzal Guru lies buried at Tihar jail,
Delhi. In the same jail premises the mortal remains of Maqbool Bhat also stay
buried since his hanging on 11 February, 1984. Empty graves at “martyrs’
graveyard” in Srinagar await return of mortal remains of Maqbool Bhat and Afzal
Guru.
The
Government of India has been steadfastly refusing to hand over the mortal
remains of these two Kashmiri Muslims widely perceived to be martyrs to the
cause of Kashmir. The reasoning provided by the authorities is that the return
of the mortal remains may create a law and order situation in Kashmir or it may
give a fillip to militancy! History points to the contrary. Militancy was on
the ascent years after Maqbool Bhat’s mortal remains were confined with in the
precincts of Tihar jail. The philosophical question, then, is to whom do the
mortal remains belong to after the state has executed a person? It is globally
perceived that on humanitarian and other considerations the mortal remains of
those executed must be handed over to the family/local community to which the
person belonged. Examples from history are in order.
Take
the case of Udham Singh who had travelled all the way to U.K. and on 13 March,
1940 had assassinated former Punjab governor, Michael O’Dwyer at Caxton Hall,
London. The latter had approved of the action of General Dyer at Jallianwala
Bagh, who had ordered firing on thousands of peaceful protesters at Jallianwala
Bagh on Baisakhi day in 1919 in Amritsar. On 31 July, 1940 Udham Singh was
hanged at Pentonville Prison in London. His mortal remains were brought to
Punjab in 1974. The martyr’s home – a single room dwelling built of small
bricks – is under the care of state archaeology, museums and cultural affairs
department.[1]
The
revolutionary Bhagat Singh was arrested on charges of shooting dead John P
Saunders, an assistant superintendent of Police on 17 December, 1928 while he
was coming out from the police headquarters at Lahore. Bhagat Singh was tried
and sentenced to death. It is generally believed that Bhagat Singh, Sukhdev and
Rajguru were hanged at night by the British on 23 March, 1931 in contravention
of the Jail Manual which allows hanging in the morning. The mortal remains of
the martyrs were also not handed over to their families. The exact place of the
cremation is still unknown.[2]
The fall out of such clandestine hanging and cremation is that many theories
differing from the official version sprout forth and further anger and sorrow
ensues amongst the people. This leads to extreme alienation. The National Martyrs
Memorial, Hussainiwala built in 1968 depicts the revolutionary spirit of the
three national martyrs.
How
strong and long lasting the feelings of getting the mortal remains of a martyr
remain embedded in the collective psyche of a people can be gauzed from the
persistent demand made till date to bring Bahadur Shah Zafar’s mortal remains from
Rangoon, Myanmar (Burma) to Delhi. Bahadur Shah was arrested by the British rulers
and tried. In 1857, he was brought to Rangoon in captivity and died there on 7
November, 1862 at the age of 87. In a memo to the President of India submitted
on 7 May, 2013 the Socialist Party, India reminded that Zafar was the leader of
the first war of independence against the colonial powers and a symbol of
Hindu-Muslim unity and wondered “why the rulers of
free India are not ready, even symbolically, to undo the insult and injustice
meted out to Zafar by at least bringing back his remains to India and put him
to rest at the place of his choice Dargah Qutbuddin Bakhtiyar Kaki at Mehrauli,
where an empty grave awaits his remains.”[3]
For
decades family members of Subhas Chandra Bose and other saner voices have been
demanding that the Union Government should tell the truth about the cause of his
death which is said to have taken place on 18 August, 1945. But even this basic
information has eluded the people. The Justice Manoj Mukherjee Commission of Inquiry
set up in 1999 said that Netaji did not die in a plane crash over Taiwan and
the ashes in a Japanese temple were not Netaji’s. Modi government takes the UPA
line on files pertaining to Subhas Bose by not making them public.[4]
Roger
Casement was a British diplomat,
human rights activist, Irish nationalist and a poet. In 1913 after retiring
from the consular service, he became more involved with the Irish Republican
and Separatist movement. He was tried for treason in view of his efforts during
the Great War to gain German collaboration for an armed uprising in Ireland to
gain Independence against British rule. He was hanged at Pentonville Prison in
London on 3 August, 1916, at the age of 51. Casement’s body was buried within
the prison premises. In 1965 his remains were repatriated to the Republic of
Ireland which had gained effective independence in 1922.[5]
Even
during wars between two countries Prisoners of War (PoWs) are exchanged at the
end of the conflict; so are the injured and the dead. Also during internal
conflicts within a country a similar arrangement exists. In such situations the
reasoning accorded by the governments – that the return of the mortal remains
may increase the anger amongst the citizens of the enemy country – is never
made an issue; bodies of those killed in encounters by the
police/para-military/army are returned to the family of the deceased. On rare
occasions the administration takes the precaution of using police cover right
up to the cremation/burial site so that the last rites are performed
peacefully. During the last rites of ‘Nirbhaya’ – whose gang rape in Delhi had
stirred a national outrage in December, 2012 – apart from the family members
the only other persons at the cremation ground were politicians, bureaucrats
and police people. Even during natural calamities like earthquake, floods,
cyclone as also during riots based on caste/religious community/ethnicity the
bodies are returned to the family. Or a mass funeral is organized at the site
of the tragedy. At times the authorities go to the extreme length of
identifying bodies of those killed in plane/train crashes or in ship-wrecks
using the DNA test to deal with the compensation issue later on. In all the
aforementioned situations the common thread is that the body of the deceased must
reach the family even as the administration faces the wrath of the people as
the “body bags” reach the family/community.
It
is pertinent to add that the International Committee of the Red Cross (ICRC) deals
with the return of the remains and personal effects of the dead vide its Rule
114:
“Rule 114. Parties to the conflict must endeavour to facilitate
the return of the remains of the deceased upon request of the party to which
they belong or upon the request of their next of kin. They must return their
personal effects to them.”
The
ICRC further elaborates:
State
practice establishes the customary nature of this rule in international armed
conflicts. In the context of non-international armed conflicts there is a
growing trend towards recognition of the obligation of parties to a conflict to
facilitate the return of the remains of the dead to their families upon their
request. The fact that this obligation is in keeping with the requirement of
respect for family life (Rule 105 of the ICRC) implies that it should apply
equally in both international and non-international armed conflicts. [6]
In
all situations the body of the deceased must reach the family. This alone would
satisfy and soothe the collective conscience of the society.
[Dr.
Paramjit Singh Sahni and Shobha Aggarwal, advocate are both members of Public
Interest Litigation Watch Group. Email: pilwatchgroup@gmail.com]
[1]
http://timesofindia.indiatimes.com/india/Mere-assurances-marked-Udhams-martyrdom-day-every-year/articleshow/21497137.cms
[2]
http://madangsingh.expertscolumn.com/article/fresh-facts-hanging-bhagat-singh
[3]
http://www.merinews.com/article/socialist-party-requests-president-to-bring-back-bahadur-shah-zafars-mortal-remains/15885179.shtml
[4]
http://indianexpress.com/article/india/india-others/explained-the-netaji-files/
[5] http://en.wikipedia.org/wiki/Roger_Casement
