Mercy guidelines

THE Presidents exercise of powers under Article 72 of the Constitution to grant pardon or to commute the sentence of a convict handed the death penalty has never been easy. Every President faces the moral dilemma of weighing societys cry for justice to the victims against the convicts plea for mercy. The Constitution provides similar powers to the Governor under Article 161. When a petition under Article 72 or 161 is pending before the President or a Governor, the execution of that death sentence stands suspended.

The Presidents ability to take an objective decision under Article 72 is sure to come under stress if the issue is politicised as it has been in the case of Mohammad Afzal, who has been awarded the death sentence in the 2001 Parliament House attack case.

A.P.J. Abdul Kalam, as President, received Afzals mercy petition on October 4, 2006, and forwarded it to the Ministry of Home Affairs (MHA) for its advice. Since then, the Ministry has been examining the petition in consultation with the Government of the National Capital Territory of Delhi. The MHA usually consults the State government concerned before submitting the mercy petition back to the President with its advice as the Presidents powers under Article 72 are always exercised with the aid and advice of the Council of Ministers.

The inordinate delay by the MHA to submit Afzals petition to the President with its advice is perhaps indicative of the dilemma the government faces in keeping the issue free of political considerations. Whatever the governments advice, it is likely to be interpreted in political terms.

Notwithstanding the plausible interpretation of this inordinate delay, one may ask how the government and the President can decide Afzals petition objectively. The publication of Afzals petition (The Afzal Petition: A Quest for Justice) by Promilla and Company, in association with Bibliophile South Asia and Champa: The Amiya and B.G. Rao Foundation, in 2007 was a significant effort to dispel the misgivings about Afzals plea for mercy. The medias indifference to the publication of Afzals petition, considering that a mercy petition usually remains under wraps until the Presidents decision on it, is indeed inexplicable.

However, trying to understand the issues raised in Afzals mercy petition would be a futile exercise without knowing how the government and the President decided mercy petitions in the past. Therefore, Frontline sought from the Government of India, under the Right to Information Act, details of mercy petitions decided by and pending with the President during the past 15 years. The reply from the MHA states that the President decided 12 mercy petitions in the past 15 years, with clemency being granted in three cases. As many as 25 petitions, submitted by the MHA with its advice, are pending with the President for a final decision. The MHA is examining three petitions, including Afzals, in consultation with the respective State governments, to prepare its advice for the Presidents final decision.

When the MHA advises the President regarding Afzals mercy petition, it cannot ignore the well-established guidelines that it has followed meticulously while deciding other mercy petitions. As Frontlines examination of the files relating to the 12 decided cases revealed, the government relied on seven specific guidelines (which it called grounds) to advice the President on the merits of each petition. These guidelines are based on facts, and are easily verifiable, and leave the government with little discretion in the matter. The government sought to answer yes or no to the questions implicit in each guideline while determining whether any of the seven grounds applied to a petition. These grounds are as follows:

Personality of the convict (such as age, sex, or mental deficiency) or circumstances of the case (such as provocation or similar justification). Thus, if the convict was very young, or a woman, or a mentally challenged person, or if the offence was committed under distress, these were considered as relevant factors for the grant of clemency.

Has the appellate court expressed doubt on the reliability of evidence but has nevertheless decided on conviction?

Is it alleged that fresh evidence is obtainable, mainly with a view to seeing whether a fresh inquiry is justified?

Has the High Court, on appeal, reversed an acquittal or has it, on appeal, enhanced the sentence?

Is there any difference of opinion in the Bench of High Court judges, necessitating reference to a third judge?

Was the evidence duly considered in fixing responsibility, if it was a gang murder case?

Were there long delays in the investigation and the trial?

If the answer is yes to even one of these grounds, then the President found it reasonable to grant clemency. The details of the three cases in which the President granted clemency amply bear this out.

In March 1998, the President commuted the death sentences awarded to S. Chalapathi Rao and G. Vijayavardhana Rao for their role in the torching of an Andhra Pradesh State transport bus near Chilakaluripet in Guntur district on March 8, 1993, which caused the death of 23 passengers. Their mercy petitions were rejected by President Shankar Dayal Sharma in March 1997. Fresh petitions were filed before the President on their behalf, warranting a Supreme Court stay on their executions.

Their second mercy petitions stated that the two Dalit youth had absolutely no intention of harming, let alone killing, any of the passengers of the bus and that their intention was to commit robbery so as to overcome their acute poverty. They had no previous criminal record and were very young. They committed the crime while being mentally and emotionally disturbed and tense due to their poor family situation. Their confessional mercy petitions poignantly brought out their remorse and repentance. In violation of the International Covenant of Civil and Political Rights, they were denied legal aid for a period of one year after their arrest. Sharmas successor, K.R. Narayanan, found these facts sufficient to grant clemency under the first ground.

The commutation of the death sentence of Kheraj Ram from Rajasthan in 2006 was equally in accordance with these guidelines. The High Court had acquitted Kheraj Ram but the Supreme Court restored the trial courts conviction and death sentence. The MHA considered 11 years of investigation and trial in this case too long. It, therefore, recommended to the President to commute his sentence to life imprisonment, as his case was covered under the second and seventh grounds.

As these seven grounds help the President to be consistent, transparent and objective in arriving at a decision on a mercy petition, there is a strong case to consider Afzals mercy petition in the light of these grounds, irrespective of the political controversies that the Presidents decision may give rise to.

In his petition, Afzal claimed that he became involved in the conspiracy to attack Parliament House without his knowledge, intention or willingness. His allegation that officers of the Special Task Force (STF) of Jammu and Kashmir used him and introduced him to one of the terrorists involved in the attack, whom he identified as Mohammad, could be considered as pointing to fresh evidence.

The prosecution stated that Afzal had gone to Srinagar on December 13, 2001, in the truck driven by another co-accused, Shaukat Hussain, and was arrested along with Shaukat Hussain in Srinagar on December 15, 2001. Afzal claimed that any truck or vehicle going to Srinagar had to pass through the Lakhanpur checkpost where a toll is collected and particulars of every vehicle, as also the name of the driver and his driving licence number, are entered. Afzal alleged that the investigation had glossed over this important fact. This fabrication, he suggested, discredited the alleged recoveries of a laptop and Rs.10 lakh from his possession in the truck.

The Supreme Court, in its judgment dismissing Afzals appeal against his conviction and sentence, dealt extensively with the facts relating to how he was denied access to a lawyer. Afzal alleged that he was denied legal assistance both at the investigation stage and at the trial stage.

Disagreeing with the Supreme Courts view that his objection to the lawyer was an afterthought, Afzal recalled that he had written an application to the Designated Judge of the trial court on July 8, 2002, that he was not satisfied with the amicus curiae. He said he had also given the names of four lawyers and requested the judge to appoint any one of them for him.

Afzal claimed that he again told the court on July 12, 2002, that he was not satisfied with the person appointed as counsel and, most important, that counsel Neeraj Bansal also told the court that he wanted to withdraw from the case. But the judge did not discharge Bansal, and asked him to assist the court.

Afzal said he never signed any vakalatnama in favour of Bansal, the amicus curiae. He pointed out that material witnesses were not challenged in cross-examination and neither was any suggestion put to them to disprove the allegations against him.

One of the key pieces of evidence against Afzal was that he knew the deceased terrorists. He argued that if the Supreme Court did not believe the so-called confession, they should also not have believed the police that he identified the deceased terrorists.

He alleged that he did not have the expertise to cross-examine the prosecution witnesses on the laptop issue and added that his counsel, too, did not examine any of the witnesses on the contents of the laptop, an important piece of evidence recovered from him as cited by the prosecution.

The prosecution told the court that Afzal led the police to the hideouts and to the shops where the terrorists bought mobile phones, motorcycles and explosives. Afzal alleged that his advocate did not cross-examine Prosecution Witness (PW) 66 (Inspector Mohan Chand Sharma) at all, even though he was one of the most important witnesses, and had coerced him into making a disclosure statement.

Afzal alleged that the shopkeepers were all coerced into identifying him. He said that his advocate cross-examined only 22 of the 80 prosecution witnesses and that during the cross-examination he sometimes just gave one suggestion. Even though I was the most vulnerable person I had no legal assistance for no fault of mine except that I am too poor to afford a lawyer, he said.

The contents of Afzals petition make it clear that key pieces of evidence were ignored during the investigation and his inability to cross-examine the prosecution witnesses effectively was a crucial factor in the success of the prosecution.

An objective study of Afzals petition would, therefore, show that there is enough justification for the President to grant pardon or commute his death sentence by citing the third ground, that is, fresh evidence was obtainable, mainly with a view to suggest that a fresh inquiry is justified.