Hanging of Afzal Guru Due Process, Collective Conscience, and the Unfinished Questions of the Indian Parliament Attack. By Salman Khan

Introduction

The death penalty occupies a deeply contested space in modern constitutional democracies, particularly when applied in contexts of political violence, internal conflict, and contested sovereignty. Few cases illustrate this tension as starkly as the hanging of Mohammad Afzal Guru on 9 February 2013, in connection with the 13 December 2001 attack on the Indian Parliament.

More than a decade after the attack—and years after Afzal Guru’s execution—critical questions remain unanswered: Who precisely planned and executed the attack? Were the investigations conducted in accordance with constitutional and international legal standards? And what does the execution reveal about the relationship between the Indian state, the judiciary, and Kashmir?

This case is not merely about one man. It is about due process, the limits of state power, and the ethical obligations of democracies under the rule of law.

The Parliament Attack and the Construction of Guilt

On 13 December 2001, five armed men stormed the Indian Parliament complex, leading to the deaths of security personnel and the attackers themselves. The incident brought India and Pakistan to the brink of war and reshaped India’s national security discourse.

In the aftermath, Mohammad Afzal Guru, a Kashmiri civilian, was arrested and charged with conspiracy. Crucially, the identities of the attackers were never conclusively established, nor was a complete chain of command proven. The prosecution’s case relied heavily on confessional statements, circumstantial evidence, and testimonies later acknowledged to be procedurally compromised.

Both the Delhi High Court and the Supreme Court of India recorded serious concerns regarding:

• Violations of procedural safeguards

• Fabrication or manipulation of evidence

• Coerced or unreliable confessions

• Inadequate legal representation at critical stages

  
  

Despite these findings, Afzal Guru was convicted—not as the principal attacker, but as a conspirator.

“Collective Conscience” vs. Constitutional Justice

The most troubling aspect of the Supreme Court judgment lies in its justification for capital punishment. The Court held that the death penalty was warranted to satisfy the “collective conscience of society.”

From a constitutional and international human rights perspective, this reasoning is deeply problematic.

Justice systems are designed precisely to shield the accused from public outrage, political pressure, and nationalist sentiment. The invocation of “collective conscience” shifts the basis of punishment away from proof beyond reasonable doubt toward symbolic appeasement, particularly dangerous in cases involving minorities and contested regions like Kashmir.

For scholars of constitutional law, this raises a fundamental question:Can a democracy remain faithful to the rule of law if emotional consensus replaces legal certainty?

Kashmir, Exceptionalism, and the Politics of Law

Afzal Guru’s execution cannot be separated from the broader political context of Kashmir. For decades, the region has existed under conditions of legal exceptionalism, heavy militarisation, and suspended civil liberties.

The handling of this case reinforced a long-standing perception among Kashmiris that:

• Legal processes are selectively applied

• Courts defer to the state in “national security” cases

• Kashmiri lives are rendered legally expendable

The secrecy surrounding Afzal Guru’s execution—including the failure to return his body to his family—further deepened alienation and mistrust. Rather than closing a chapter, the hanging entrenched a sense of collective punishment and unresolved grievance.

International Legal Standards and the Death Penalty

Under international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), the death penalty—where it has not been abolished—must be imposed only after the strictest adherence to due process and only in the “rarest of rare” cases.

Key principles include:

• Transparent and fair investigations

• Access to competent legal defence

• Exclusion of coerced confessions

• Exhaustion of all doubts in favour of the accused

The Afzal Guru case, as documented by independent lawyers, journalists, and academics, falls disturbingly short of these standards.

Why This Case Still Matters

For human rights activists, diplomats, and scholars, Afzal Guru’s hanging is not a closed historical episode. It is a precedent—one that signals how states may respond to political violence by:

• Lowering evidentiary thresholds

• Normalising exceptional legal reasoning

• Sacrificing individual rights for national narratives

In an era marked by rising authoritarianism and securitisation, silence on such cases enables their repetition elsewhere.

A Call to Action

This case demands renewed global engagement—not to reopen wounds, but to defend universal principles.

We call upon:

• Human rights organisations to document and archive cases where “national security” undermines due process

• Academic institutions to include Afzal Guru’s case in curricula on constitutional law, transitional justice, and conflict studies

• Diplomats and policymakers to raise due process concerns in bilateral and multilateral human rights forums

• Civil society to resist the normalisation of executions justified by public sentiment rather than legal certainty

Justice delayed is painful. Justice denied is corrosive—not only to the victim, but to the moral legitimacy of the state itself.

Conclusion

The hanging of Afzal Guru stands as a cautionary tale for democracies everywhere. When courts prioritise collective emotion over constitutional principle, the rule of law is weakened for all.

The unresolved questions surrounding the Indian Parliament attack—and the execution carried out in their shadow—remain an indictment not just of a flawed trial, but of a system willing to trade justice for closure.

Remembering Afzal Guru is not an act of defiance. It is an act of legal conscience.

History Is Watching

Mr. President, the world watches as South Africa keeping eye wide shut and remain numb on the tragedy of Kashmir. History, too, watches — as do the ghosts of those who perished in the fight for our own freedom.

May we not be remembered as the generation that betrayed their legacy. May we, instead, rise as the nation that once again chose the side of humanity.

Engage India on multi national foras like BRICS, IORA, IBSA, G20 on their human rights crime in Indian Illegally Occupied Kashmir IIOJK. Revoke diplomatic relation with India expel Indian ambassador from Pretoria and recall our Ambassador from New Delhi. Redeem our conscience. Restore our moral voice.

I thank you in advance for your kind consideration and solidarity.

Let South Africa stand — as it once did — on the right side of history. Aluta Continua

Sincerely Yours,

In Struggle

Salman Khan. Paul Harris Fellow, T.I

Chairman SAKAG & KCAU

South African Kashmir Action Group

Kashmir Centre for African Union

Excecutive member Kashmir Diaspora Coalition KDC

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