Afzal Guru's end spurs debate

There is need for transparency and timely action on petitions of convicts

Life of condemned convicts seems to hinge on the philosophy Presidents of India believe in and political convenience of Union home ministers -- both vested with powers sourced from the Constitution to decide the fate of mercy petitions.

If deciding mercy petitions acquired a proportion during the nascent tenure of President Pranab Mukherjee, given the fact that going by the book he cleared seven cases that ended in hanging of two terrorists in less than three months, Pratibha Devisingh Patil commuted death sentence of one convict to life imprisonment and her predecessor K R Narayanan, many say, would desist from taking a call on the subject leading to huge pendency of mercy pleas.  

The President takes the decision on the advice of the Home ministry though they have the right to return the file for review. Under incumbent Union home minister Sushilkumar Shinde and his predecessor P Chidambaram, processing of clemency petitions was streamlined. While Shinde chose to decline requests to convert death to life imprisonment in more than half a dozen cases, his predecessor Chidambaram argued that it is not possible to jump the queue of petitions to hang a convict out of turn. This impression created by Chidambaram was belied by Shinde, who picked clemency petitions to deny a chance of extended life. 

So, while the government remains the same, the logic used to decide the fate of convicts changed during the course of time.

Earlier, during the four-year regime of Shivraj Patil under UPA 1, only two mercy petitions were decided. Prior to him, hardly any case reached finality during NDA home minister L K Advani’s term from 1998 to 2004.    

The sentencing policy has evolved over the years even in the Supreme Court. Various apex court judgments reflect the shift, from giving emphasis to gravity of crime to looking into the combined “crime and criminal” aspect before applying ‘rarest of rare’ case principle to hand over death penalty. Still, the apex court has left it to its judges to interpret instead of categorising crimes that would fall under the rarest of rare cases to attract capital punishment.

The uproar over the February 9 secret hanging and burial of Parliament attack convict Afzal Guru inside the Tihar jail has raised a debate on the need to reform the administrative procedure for handling mercy pleas by bringing in transparency and putting a cap on the time taken to decide.  

Guru’s lawyer N D Pancholi, who is fighting for the family to get access to his body, was of the view that the haste shown by the UPA government in executing the Kashmiri has raised doubts about the intention of the authorities and unrest in the Valley.

“It is a public issue, they should have informed the family, given them time to approach the SC against the President turning down the mercy petition,” he told Deccan Herald.  Interestingly, Pancholi said that the judge, before issuing the death warrant, should have sought Guru’s view.

In 2006, the then president A P J Abdul Kalam had met a delegation led by Guru’s wife, in which Pancholi was also present, after a mercy petition was filed.  He claimed that Kalam was sympathetic to Guru’s case. “May be the ministry did not give their opinion to Kalam knowing that he had a different take on death penalty,” his lawyer said.

Guru’s file had moved from MHA in 2011. Since Shinde became the home minister mid-last year, all the files came to him and he rejected Guru’s plea and reverted it to President’s office on January 21. Fourteen days later, President signed on it and sent it back to the MHA for Guru’s execution, which was carried out on February 9.

Former solicitor general Gopal Subramaniam, who was special prosecutor in the Parliament attack case, in his media interactions had ruled out suspicion of rights activists that Guru was not given a fair trial by saying that this issue was settled by the Supreme Court. At the same, he said that the government, after sitting over his mercy petition for eight ye,years should not have hanged Guru without giving him opportunity to explore further legal options. He also believed that the government should have informed Guru’s family of the execution decision well in advance instead of  couriering it to his home in Sopore of Kashmir, which reached the family after he was no more.

In the historic judgement on the 2G scam, the Supreme Court had given important directions on sanction for prosecution of bureaucrats realising that the governments were sitting on the requests by investigating agency to prevent probe against tainted officials.
The SC ordered that prosecution sanction would be deemed to have been granted by authorities within a period of four months in case no decision is taken on it.

Accordingly, decisions on mercy petitions, which are  some what akin to seeking sanction for prosecution, should also be time bound and the cases should be disposed off by the MHA on ‘first come, first served’ basis.

Agrees leading RTI activist Subhash Agarwal, who has been relentlessly digging out information on the issue. Agarwal told this newspaper that “there should be time bound decision on mercy petitions and execution should also be fast thereafter”. If a well-defined system is in place, it would eliminate politicking in the sensitive matter as is being alleged in the case of Afzal Guru.  

"The acceptance of mercy petitions should be an exception after considered view of courts rather than a rule as former president Pratibha Devisingh Patil had made it out to be," Agarwal believes.

Though union home minister Shinde had ruled out any element of politics in the hanging of Guru, Jammu and Kashmir chief minister Omar Abdullah has cast aspersion on the whole exercise.

Some social activists and a section of the Muslim community have also questioned the timing of the Jaish-e-Mohammad (JeM) terrorist’s hanging.

Home ministry sources said that after the hanging of Kasab last November, nine petitions involving 14 convicts were undecided. After Guru’s hanging on February 9, the President, on the advice of MHA, has turned down the mercy plea of four associates -- Gnana Prakash, Simon, Madaiah and Bilavendran -- of slain forest brigand Veerappan, pending since 2004 after being convicted for killing 22 Karnataka police personnel in a landmine blast.

The tally came down to seven petitions involving nine condemned prisoners. Ministry sources said that Shinde has sent back, between January 21 and February 9, all the seven pleas to the President with the recommendation for hanging in five cases and commuting to life the remaining. As of now, there is no backlog, said ministry officials.

The Ministry officials explained that after the execution orders are issued by the MHA, the consent of the state where the crime had taken place is taken since officials along with trial court and jail authorities have to decide a date for the execution.

Ruling out politics, Shinde had earlier remarked, "the cases of convicts who assassinated prime minister Rajiv Gandhi and Chief Minister Beant Singh are still pending in the Supreme Court. After rejection (of their mercy petitions), cases were filed in the Madras High Court and Supreme Court… These cases are still under consideration of the judiciary. Hence, it (Afzal) is different from these cases".

Backed out

Around a year-and-a half back in 2011, the state assembly of Tamil Nadu passed a unanimous resolution against hanging three Rajiv Gandhi killers, while Shiromani Akali Dal chief minister Parkash Singh Badal backed out at the last moment to follow a similar exercise lending support to Devender Singh Bhullar due to political differences. Still, Badal continues to say that the government will not allow hanging of Bhullar, convicted for killing nine persons in the 1993 car bomb blast outside Youth Congress office in Delhi.

Other than that, SC is hearing a case where clemency has been sought for Bhullar on the grounds of inordinate delay in hanging. Three convicts in Rajiv Gandhi assassination case and Balwant Singh Rajoana in Beant Singh case are languishing in jails for years now. In the case of Afzal Guru, however, the home minister stated that there was no obstacle from Delhi.

With the government refusing to put its act together, rights activists are now banking on the Supreme Court hearing the petition of Devinder Singh Bhullar, to plug loopholes in the delivery mechanism because, ultimately, the question is about taking someone’s life.