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Kasab could be the 51st in the list of convicts facing hanging, who have approached the President for pardon. Under Indian law, only the President can commute a death sentence. If Kasab puts in a plea, his would be the 29th in chronological order. Among the 50 others awaiting President’s clemency are assassins of former prime minister Rajiv Gandhi and Afzal Guru, the Parliament attack case condemned prisoner. The queue winds back up to 1995.
Seeking clemency involves a long procedure. The Criminal Procedure Code (CrPC), which Indian courts follow, clearly enjoins that a death sentence awarded by a trial court has to be referred to a high court within 60 days under Section 366 of the CrPC.
In the case of lesser punishments, the convicted person appeals to the HC. In the case of a death sentence, the trial court refers the case to the HC. The HC has a year’s time to confirm or commute the sentence.
In Kasab’s case, if the Bombay HC confirms the sentence, he may approach the Supreme Court. If the apex court also upholds the sentence, Kasab can then file a mercy petition before the President under Article 72 of the Constitution. Once such a petition is filed, the sentence stands suspended until the President decides on the plea, which has taken decades in other cases.
Will Kasab too fall into the long queue? This is a hotly debated question ever since the special court gave its verdict on May 6. As is evident from the earlier cases, there is no guarantee that Kasab case will be fast-tracked.
Even it reaches the President, according to procedure, the file will be sent to Union home ministry, which in turn will consult the jurisdictional state government before advising the President.
The home ministry will seek from the Maharashtra government, in this case, details about the personality of the convict, the possibility of fresh evidence, delay, if any, in investigation etc.
The case of one of the terrorists – Afzal Guru – sentenced to death in the 2001 Parliament attack case, has been pending before Rashtrapati Bhavan since January 4, 2006. Soon after the case reached the President, the file was sent to the Union home ministry and it is with the Delhi government for the last four-odd years.
Will Kasab be special?
Considering such precedents, will the President, if approached, ensure speedy justice? Some legal experts argue she might, considering the enormity of the crime – 166 people killed in India’s worst terror attack.
While Law minister M Veerappa Moily hinted at this, former attorney-general Soli Sorabjee said the government can take them up according to urgency of the matter as “mercy petitions are not applications for appointment to civil posts that the government should deal with them in chronological order”.
He cited the mercy plea of Kehar Singh, on death row for the assassination of Indira Gandhi, which was rejected in less than four months.
Thus, there is a case for fast-tracking Kasab’s death row. But will he be treated as a special case is the moot point.