Was Umar Khalid Right About Afzal Guru? I Read the Supreme Court Judgment to Find Out

Was Umar Khalid Right About Afzal Guru? I Read the Supreme Court Judgment to Find Out

A blunt No? —but the viral formulation needs correction.

Umar Khalid would be on solid ground if his point was that the Supreme Court itself acknowledged the absence of direct evidence and explicitly invoked society’s collective conscience while upholding the death penalty. But saying that the Supreme Court admitted there was indirect evidence against Afzal Guru and hanged him anyway would not accurately represent the judgment. The Court expressly held that the circumstantial evidence was sufficient and satisfactory and established his participation in the conspiracy beyond reasonable doubt. The more intellectually interesting—and arguably more important—debate is therefore not whether the Supreme Court had evidence. It is this: Can a court, after finding an accused guilty beyond reasonable doubt, legitimately invoke the “collective conscience of society” as a reason for choosing death over imprisonment? That question remains far more difficult than the viral claim. And unlike the viral claim, it is a question that the Supreme Court’s own words genuinely invite us to ask. Primary source-

State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, Supreme Court of India, 2005. The judgment contains the relevant discussion on circumstantial evidence and the “collective conscience” formulation. The full judgment is also reproduced in publicly accessible legal databases. Secondary sources The Indian Express — “What Supreme Court said when it upheld death for Afzal Guru”: provides a useful explanation of the evidence relied upon by the Court and reproduces the Court’s sentencing passaige. The Indian Express — “In most death penalty cases, court invoked ‘collective conscience’ of society: Study”: discusses research by Project 39A concerning the use of “collective conscience” in death-penalty judgments.