Something About The Law

As the Delhi government reaffirmed its stance on Afzal Guru’s death penalty by returning his file to the Lieutenant Governor, lawyers and political commentators are once again faced with that old and difficult question: is the death penalty justified? This comes quickly in the wake of the Bombay trial court condemning 26/11-prime accused, Ajmal Kasab, to a death penalty.

While Kasab’s sentence is going to take a long time yet to execute (pun not intended) – he will almost definitely appeal to the High Court, then the Supreme Court and finally submit a mercy petition to the state government and the President – Afazal’s is a more immediate possibility. Over at the Hindustan Times Vinod Sharma argues that while Kasab should be hanged, Afzal Guru should not ,”to prevent him from becoming a martyr to misguided Kashmiri youth.” Of course I fail to see how he draws any distinction between the two cases (replace the word Kashmiri with Pakistani) unless you go into the substantives of the case – and in both cases the accused is hanged primarily on the count of Waging War Against The Indian State. To buttress Kasab’s sentence you have the magnitude of terror and human loss of life he caused. To buttress Guru’s sentence you have the magnitude of the symbolism involved in attacking the Indian parliament, the highest form of blow to the country’s democratic image.

Meanwhile this week’s Frontline contains a fantastic article about the death sentence that I think is mandatory reading for anybody interested in the issue. Bikramjeet Batra charts the trend of awarding the death penalty from 1948 to the present date, and spends a lot of space discussing the role of Presidents and Governments – often warring – in enforcing such sentences. A mercy petition “to the President”, he rightly points out, is not really made to the President sinc the most that the President can do is return the death penalty recommendation to the Government for reconsideration. If the Government passes the file a second time the President is bound to assent to it. Thus while awarding the death penalty the personal discretion of the President under Article 72 is limited and restricted by the advice of the Council of Ministers (see generally Shamsher Singh v. Union of India).

This is not to say that in the Indian scenario Presidents have been able to do nothing. The practical power of a President comes from his or her ability to keep a case pending – since there is no stipulation of a maximum time period by which he must assent to or turn the file. Therefor a pro-life President such as Narayanan effectively secured the stay of eight petitions that were rejected by the NDA government through its then pro-death Home Minister L.K. Advani. This trend was followed by Kalam, in whose tenure only one execution – Dhananjoy Chatterjee, in 2004 – was carried out.

Pratibha Patil faces 29 cases pending before Kasab’s petition, in case it is made, can even be considered. This is a direct bone of contention for many, who believe Kasab’s case being extraordinary should be fast-tracked. There is, however, no provision for this in the Constitution, and the President and Central Government are forced to treat all 29 mercy petitions with the same restraint (or enthusiasm, if you will).

Afzal Guru’s case, meanwhile, has not yet gone to the President. That will almost surely happen since the state government seems adamant on rejecting any form of mercy. This will then become the next pending case before Ms. Patil.

From an impartial standpoint, Ms. Patil’s future disposal of these cases will present several important questions. Will she prove to be a pro-life or a pro-death President (although the only way she can be pro-life in the face of a pro-death Government is return the file and hope the Government reconsiders it)? Will the Supreme Court, acting on the advice of a group of senior lawyers, demarcate categories of mercy petitions to speed processes like Kasab and Afzal’s? More importantly, will India finally moved towards the moratorium on executions and death penalties that it has consistently rejected hitherto?

No related posts.

Related posts brought to you by Yet Another Related Posts Plugin.