The Presidents non-reasoned secret rejection of Kasabs mercy petition, leading to his hasty hanging, raises questions about the governments understanding of the mercy power under the Constitution.
IN a top-secret mission called Operation X, the lone convict in the 26/11 Mumbai terror attack case, Mohammed Ajmal Amir Kasab, was hanged at Punes Yerawada Central Jail on the morning of November 21. Kasab, who had been housed in a highsecurity, reinforced Anda cell in solitary confinement at the Arthur Road Jail in Mumbai, was driven to Pune in the wee hours of November 19. Maharashtra has facilities for hanging only in two central jails, Pune and Nagpur. The authorities chose Pune in view of its proximity to Mumbai.
On November 21, Kasab was brought to the prisons gallows at 7.20 a.m. According to prison sources, his eyes were downcast and he appeared almost resigned to his fate. He had offered prayers (namaz) before he was brought to the hangman. A jail staffer covered Kasabs head with the customary black hood, then put and tightened the noose around his neck before pulling the lever, making the platform below give away. The body was left hanging for half an hour, after which the jail doctor declared him dead. He was buried on the jail premises, before noon, as nobody claimed the body.
Thus ended Kasabs almost four-year-long tryst with the Indian justice system, known for its emphasis on due process and the rule of law. The sequence of events, as revealed by Maharashtra Home Minister R.R. Patil, however, smacked of an undue concern on the part of the authorities to deny the prisoner an opportunity to take advantage of the checks and balances which characterise the process of carrying out the death sentence, once confirmed by the Supreme Court. The Supreme Court had confirmed Kasabs death sentence on August 29.
The date for Kasabs execution, according to Patil, was fixed by the State government on September 11 itself, and this remained unchanged, despite the fact that Kasab had sent his mercy petition to the President in the meantime. This makes one wonder whether the State government knew the fate of his mercy petition beforehand, including the dates within which both the Union Ministry of Home Affairs (MHA) and the President were likely to reject it. The MHA recommended rejection of the petition to the President, Pranab Mukherjee, on October 23, and the President rejected it on November 5. The media reported the news of the MHAs recommendation to the President, thanks to an off-the-record briefing by a spokesperson of the MHA. But the Presidents rejection was not communicated to the media.
Although the authorities, even after Kasabs hanging, did not make the objective of this secrecy clear, it can be inferred that a presidential rejection of the mercy petitionif reported in the mediawould most certainly have been challenged in the court, leading to a stay of Kasabs execution until the legal issues arising from the rejection were settled. One such legal issue would most surely have been whether the President and the executive applied their minds to the consideration of Kasabs mercy petition, given that the date of his hanging, fixed on September 11 by the State government, remained unsuspended. That the MHA and the President completed the process of consideration of Kasabs mercy petition so as to hang him on November 21 makes the entire constitutional exercise of mercy power under Article 72 farcical.
Reasonable suspicionThere is reasonable suspicion that the State government chose November 21 for hanging before the anniversary of the 26/11 Mumbai terror attack and the beginning of the Parliament session on November 22, where the issue was expected to be raised by the opposition parties. Under the influence of these extraneous factors, the MHA and the President could hardly have been expected to consider Kasabs mercy petition dispassionately and take a reasoned and transparent decision as they are legally expected to.
The Supreme Court has held that the courts cannot go into the merits of the Presidents mercy decision, but they can certainly examine whether he considered all the relevant materials, and order a fresh consideration if it is shown that he left out some. The courts can perform this role only when the President takes a reasoned and transparent decision. In the absence of such a decision, the courts can only perform the perfunctory task of going through the files submitted by the government in confidence, without knowing whether the government has concealed any relevant material.
Indeed, this is what happened when the last hanging in India, prior to that of Kasab, was carried out in 2004. Lawyer, scholar and activist Bikramjeet Batra has found from MHA files under the Right to Information (RTI) Act that the briefs prepared for the then President, A.P.J. Abdul Kalam, provided an inaccurate and incomplete view of the 10-year delay in the execution of Dhananjoy Chatterjee, ignoring official negligence. According to him, a reasoned and transparent decision could have made it easy for the Supreme Court to intervene on the grounds that relevant material was not placed before the President before executing Chatterjee. In the case of Kasab, however, the authorities thought it necessary to deny the privilege of others approaching the courts on his behalf to stop the execution even though other death-row prisoners have had this advantage earlier. The government apparently wanted to spare the courts even the little burden of checking whether the President was apprised of all the mitigating materials before he rejected Kasabs mercy petition. Those who value civil liberties are worried that the Kasab approach to hanging should not become a precedent for other death-row inmates.
The government and the President have shied away from disclosing the reasons for the rejection of Kasabs mercy petition even though they are already public knowledge and it would have been easier to satisfy the requirements of law and due process. If the MHA sources, as reported in the media, are to be believed, the government gave priority to Kasabs petition even while mercy petitions filed by other convicts were pending with it and the President because the judicial verdicts had brought out overwhelming evidence against Kasab. Besides, the Ministry appears to have felt that there were no special circumstances making Kasab deserve clemency. If such off-the-record briefings by the MHA are permissible, there can be no bar on the President issuing a formal press release explaining the reasons for rejecting Kasabs petition. Still, the government and the President appear to have refrained from taking a reasoned and transparent mercy decision on Kasab only because the grounds they have relied on are legally vulnerable and open to challenge. No other inference is possible from the governments reticence on the reasons for rejection.
Indeed, Section 4(1) (d) of the RTI Act requires that every public authority shall provide reasons for its administrative or quasi-judicial decisions to the affected persons. This provision has no exemptions. The government denies information to RTI applicants seeking reasons for its mercy decisions by taking shelter under Article 74 (2), which only bars inquiries by courts into Ministers advice to the President.
The reasons for rejecting a mercy petition are significant, not only for the convict who has sent it but for other convicts who may use them as precedents while drafting their own. They are equally significant for the general public because the President rejects a mercy petition as the sovereign authority, and in a democracy sovereignty ultimately rests with the people.
Barometer of public opinionA decision taken in the capacity of the sovereign should be guided not by public opinion but by principles that form the basis of the Republic. Public opinion can never be a barometer for such decisions by the President as it can never be ascertained whether the public collectively supports rejection of a petition. It will be problematic if the President seemingly takes a decision which he assumes reflects the dominant majoritarian view in society, let alone that of the society in a collective sense. The President is expected to act as the guardian of the Constitution, which aims to protect the interests of any minority group, which feels threatened by the majoritarian viewpoint. A minority that does not believe in retribution, and therefore refuses to endorse the presidential rejection of a mercy petition, feels embarrassed, threatened and guilty when the President claims to reject a mercy petition on behalf of the entire society. Such a minority has no means of making its voice heard, if the President represents the belligerent section in society. Therefore, if the Presidents decision is shrouded in secrecy, it throws little light on the principles which guided it. Non-speaking rejections render the object of the Presidents mercy power in a democracy meaningless and its exercise arbitrary.
U.N. resolutionKasabs execution coincides with two major developments in the death penalty debate, both sending conflicting signals about the direction of the abolitionist movement in India. On November 21, the United Nations General Assemblys Third Committee, which addresses social, humanitarian and human rights issues, adopted its fourth draft resolution calling for a moratorium on executions. As many as 110 countries voted in favour of the resolution, 36 abstained and 39, including India, voted against it. Compared with a similar vote in the General Assembly in 2010, it is one more vote in support, and two fewer in opposition.
The call for a moratorium has been gaining support since the first resolution was adopted in 2007, and repeatedly carried in 2008 and 2010. Although not legally binding, General Assembly resolutions carry considerable moral and political weight. However, India is still not convinced about the merits of supporting the resolution and the global trend towards abolition of the death penalty. By consistently opposing the resolution, India has opted to be in the company of the United States, Japan, China, Iran, North Korea, Syria, Pakistan and Zimbabwe, among the 39 countries. Observers regret that India treats its decision to oppose the resolution as an executive action rather than involve Parliament and the nation to debate the issue.
This stands in contrast to the serious admission within Indias Supreme Court that it had been confirming the death penalty on convicts by relying on wrong legal precedents. In Sangeet vs State of Haryana, decided by the Supreme Court on November 20, Justice Madan B. Lokur and Justice K.S. Radhakrishnan pointed out that in five cases, the Supreme Court had relied on the wrong legal precedent set in Ravji vs State of Rajasthan in 1996. According to this precedent, the Supreme Court erroneously concluded that in heinous crimes, circumstances relating to the criminal are not pertinent. Curiously, however, the Lokur-Radhakrishnan Bench refrained from calling these five judgments per incuriam (out of error or ignorance) although they deserve to be so described. These five judgments are apart from the seven judgments (sentencing to death 13 convicts), which were already declared per incuriam by a previous Supreme Court Bench in 2009. With five of these 13 convicts already securing commutation of their death sentences by competent authorities, President Pranab Mukherjee may well consider the cases of the remaining eight, and the convicts sentenced to death in the five judgments identified by the Lokur-Radhakrishnan Bench for commutation of their death sentences. The Kasab precedent should be treated as an aberration rather than as a defining moment for future mercy decisions.
