By Sam Rajappa, The Statesman, 27, Oct 2006
“The most glaring weakness is that no matter how efficient and fair the death penalty may seem in theory, in actual practice, it is primarily inflicted upon the weak, the poor, the ignorant and against racial minorities,” wrote Pat Brown, former California Governor, in his book, Public Justice, Private Mercy, half a century ago. Sadly, the picture in India is no different even today.
“Death by hanging,” to which Mohammed Afzal Guru has been sentenced for his alleged involvement in the Parliament House attack on 13 December, 2001, is a de-humanising mode of implementing the death penalty. The very foundation of a liberal society is built on certain inviolable individual rights. Of these, the right to life is fundamental though the right to die is not, according to our Constitution. Therefore the question one should ask is whether capital punishment should be allowed to remain in our statute books.
Mahatma Gandhi, father of the nation, made a quantum jump from “punitive inhumanity to progressive humanism” tuned to his thesis of reforming the criminal and making him a useful citizen.
Once a man is executed, the punishment is beyond recall or reparation. The UN Declaration of Human Rights, to which India is a signatory, proclaims that “everyone has the right to life, liberty and security of person.” More recently, on 28 April, 1999, the UN Commission on Human Rights overwhelmingly voted for a global moratorium on death penalty. Article 51 (i) of our Constitution urges us to abjure violence as one of fundamental duties.
The unfortunate timing of the Supreme Court’s recent judgment questioning the exercise of power to pardon by the Andhra Pradesh Governor to remit the 10-year sentence of Gowra Venkata Reddy, a Congress activist, for murdering a Telugu Desam political opponent, on extraneous consideration, has vitiated the atmosphere at the time of the mercy petition of Tabasum, wife of Afzal, to President APJ Abdul Kalam known for his opposition to death penalty. SAR Geelani, Delhi University lecturer, also accused in the Parliament House attack case, had the benefit of competent lawyers to defend him and he was acquitted. Afzal was denied this luxury. He did not participate in the attack on Parliament House which resulted in 10 deaths. He was tried under the Prevention of Terrorism Act (since repealed) but sentenced under the Indian Penal Code which is very liberal with death penalty.
Apart from Section 302, commonly associated with the crime of murder, there are six other sections ~ 120B, 121, 132, 194, 305 and 396 ~ which prescribe death penalty. Under POTA, conspiracy invites only life imprisonment, but Section 120B of IPC provides for death penalty. Afzal was sentenced to death for murder, which he never committed, under Section 302, Criminal Conspiracy (120 A and B) and waging a war against the Government of India (121). This selective use of the law to impose death penalty exposes the mindset of the trial Judge.
The power to grant pardons and reprieves was traditionally a royal prerogative and was regarded as an absolute power.
In independent India, the power to grant pardons and reprieves is vested in the President and the state Governors under Articles 72 and 161 of the Constitution, respectively. There was no mention of the power of pardon in the Constitutional Adviser’s memorandum of 30 May, 1947. But in the reply to his questionnaire of 17 March, 1947, Shyama Prasad Mookerji included the power to “commute or remit punishment” as one of the functions of the President. Goplaswamy Ayyangar and Alladi Krishnaswamy Aiyar recommended its inclusion in the draft Constitution. The only amendment to it, moved by Tajamul Hussain, who wanted powers vested in state Governors to exercise clemency in case of sentences of death should be removed, was overruled by Ambedkar. This is how Articles 72 and 161 came to be incorporated in the Constitution.
The scope of the President’s power of pardon and when it can be judicially reviewed have been spelt out by the Supreme Court in the recent Andhra judgment: that the President in the exercise of the power is bound to act on the advice of the Cabinet; that it is subject to judicial review; that the judicial review is limited to only examining whether the power has been exercised on extraneous or mala fide considerations. Once it was found that there had been application of mind and there were no extraneous or mala fide considerations, the court would not impose its own judgment over the government’s.
Of late and not always with good reason, the judiciary has been encroaching on the powers that were left to the executive by the Constitution. Article 72 states: “The President shall have the power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence,” which includes, “all cases where the sentence is a sentence of death.”
Executive clemency is a matter of discretion and, as Justice SH Kapadia of the Supreme Court said in his separate opinion in the Andhra case, “has to be exercised on public consideration alone and not for the convict only.” Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. An undue exercise of this power is to be deplored, Justice Kapadia observed.
The President, besides forwarding Tabasum’s mercy petition to the government for its recommendation, has been consulting legal experts on the scope of his power of pardon. The government can examine the evidence produced by the Special Task Force of the Kashmir police before the trial court afresh. The trial Judge, relying fully on the STF version, was not prepared to accept Afzal’s testimony. A competent defence lawyer would have easily exposed the discrepancy in the police version. For instance, the dealer who supplied Afzal the cell phone deposed that it was sold on 4 December, 2001, with a new SIM card, bearing the number 9811489429. But the police records show that the phone had been in use since 6 November, 2001, and that all the five militants who took part in the Parliament House attack had spoken to Afzal on this particular number. Jammu and Kashmir did not even have a cellular network in 2001.
Counsel appearing for Afzal in the High Court had his own personal agenda of getting death by hanging substituted by lethal injection. An affidavit he filed on behalf of Afzal states: “Section 354 (5) Cr.PC is unconstitutional and ultra vires of Article 21 of the Constitution in as much as death by hanging is the only manner of execution prescribed in law and as such, execution constitutes cruel, inhuman and barbaric treatment and also constitutes exceptionally harsh punishment…” Afzal never wanted to die by hanging or lethal injection.
The home ministry must examine whether Afzal’s execution will create a strong sense of alienation among a significant section of people and provoke more people to take to militancy in Kashmir. The political consensus in Kashmir as reflected by the ruling Congress and the People’s Democratic Party and the opposition, the National Conference, is clearly in favour of clemency for Afzal. The least the President could do is to commute Afzal’s death sentence to life imprisonment.
(The author, a veteran journalist who retired from The Statesman, is based in Chennai.)