By Dr. Paramjit Singh Sahni & Shobha Aggarwal
15 March, 2015
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. 
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.  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.” 
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. 
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. 
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. 
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: firstname.lastname@example.org]
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