The haste, secrecy and violation of established procedure that marked the execution of a human being at its mercy hardly befit a democratic government.
THE Ministry of Home Affairs and the office of the President have hitherto informed the public on a real-time basis about decisions taken on pending mercy petitions, especially of rejections. When the President rejected the mercy petitions of Mahendra Nath Das (May 8, 2011), Devender Pal Singh Bhullar (May 25, 2011) and Murugan, Santhan and Perarivalan (August 3, 2011), and thereafter when each of these prisoners was informed about their scheduled dates of executions, this information was communicated to the public and was widely covered in the media. This is as it should be.
We live in a democracy governed by the rule of law where transparency and accountability in decision-making require the free flow of information to the public. Section 4 (c) of the Right to Information Act also requires all public authorities to keep the public informed of all important decisions. However, in Ajmal Kasabs case, the government deemed it fit to keep this information secret. The mercy petitions of Kasab and others who wrote on his behalf were rejected on November 5 by the President, but the public was only informed about this on November 21, after he was executed. The reasons for and implications of this delayed disclosure need to be examined closely.
Once a mercy petition is rejected, the prisoner and those who petitioned the President for mercy on behalf of the prisoner have to be informed about the rejection. If a single petition sent on behalf of the prisoner is signed by many people, the Government of Indias rules require that at least the first signatory be informed of the rejection. Similarly, the Maharashtra Prison Manual stipulates that once the State government has fixed the date of execution, the date must be communicated to the prisoner and his relatives. There is no provision allowing the prisoner to meet his relatives after the scheduling of the execution, so the purpose behind informing the prisoners family of the scheduled date is to enable them to act quickly in availing themselves of judicial remedies if they wish to.
It is well settled in law that the Presidents decision is subject to judicial review, and therefore the prisoner and those who petitioned on his behalf have a right to challenge the rejection of the mercy petition. Apart from this, a prisoner may also have various other grounds to challenge the governments decision.
Access to rightsFor rights to be meaningful, they have to be accompanied by facilities that make those rights accessible. Unless the prisoner, his family and others who petitioned the President for mercy are informed about the rejection of the mercy petition and the scheduled date of execution, they cannot seek judicial remedies and challenge either the rejection of the petition or the proposed execution of the prisoner. These challenges do not in any way question the correctness of the judicial verdict, but are based on subsequent events. For example, in the cases of Das and Bhullar, the judicial challenge to the execution was posited mainly on the delay in deciding the mercy plea. Murugan et al have taken the additional ground of discrimination, namely that the mercy plea of Nalini, who was accused of having played an equal role, was allowed while theirs was rejected. Each of these prisoners established a prima facie violation of their rights, and the Supreme Court stayed their executions.
Dhananjoy Chatterjee succeeded in having the rejection of his mercy petition set aside on the grounds of fettering of discretion and non-application of mind, and the Supreme Court directed the President to reconsider the petition. Other possible grounds available to prisoners at this stage are non-availability of legal aid in the preparation of the mercy petition in violation of vested rights, error apparent on the face of the record, ignoring of relevant material and / or considering irrelevant material in decision-making, and so on. Moreover, reasonable time must be given to the prisoner and others to seek judicial remedies open to them once the mercy petitions are rejected and the execution is scheduled. Therefore, a reasonable time gap is necessary between the communication of the rejection to the prisoner, his family and those who petitioned the President for mercy, and the scheduled date of execution. In the records compiled by Bikramjeet Batra, of all known cases of execution in Indiawhich run into hundredsthe shortest gap hitherto was 11 days (Dhananjoy Chatterjee) and thereafter 15 days (Suresh Bahari).
The mere fact that a particular procedure has been stipulated in the rules is not enough to justify it: that procedure has to pass the further test of being fair, just and reasonable. In the present case, even the procedure set out in the governments own rules and established through its own practice was ignored. Though Kasabs mercy petition was rejected on November 5, and the Maharashtra government was informed about this on November 8, the prisoner himself was informed about this only on November 20, that is, the day before his execution. Was this fair? The governments responsibility to inform the prisoners family was purportedly discharged by sending a fax to the Pakistan embassy on November 20, even though Kasabs full village address was available with the police and jail authorities. Was this just? Those who petitioned the President for mercy to Kasab learnt about the rejection of their petitions through the media only after Kasab had been executed. Was this reasonable? The violation of established procedure and such haste and secrecy in executing a human being at its mercy are hardly befitting a democratic government and do not do us credit. Unless, of course, the government had good reasons for such conduct.
Contrary to established procedureThe government has indeed given its reasons. Confident of popular support, it chose to brazen it out. In separate interviews to NDTV on November 21, Union Home Minister Sushilkumar Shinde and Maharashtra Chief Minister Prithviraj Chavan stated that the rejection of the mercy petition and the date of execution were kept secret because they did not want human rights activists to move the courts and obtain injunctory relief. Here, we have a lawfully elected government admitting that it deliberately violated the rule of law and executed a person in a manner contrary to established procedure because it wanted to prevent recourse to lawful remedies. Plainly speaking, since they had no faith in the law, the judiciary and their own citizenry, they slunk under the cover of darkness and secrecy to do the dirty deed. Is this how we want our government to behave when it executes a human being? Such deliberate defiance of the rule of law, such blatant exclusion of the judicial power to enforce due process, and the shamelessly flouted disrespect for human rights by a government confident of mass support in its execution of Kasab have enough of a tinge of authoritarianism to make us all uncomfortable.
To deny a condemned death-row prisonera foreigner in this land abandoned by everybody, including his own countrymen and embassythe right to challenge a decision which oft has been challenged successfully in the past portrays a callousness that is deeply disturbing. Even if the judicial reprieve was forthcoming, many would say, it would only be short-lived, and merely delay the inevitable, but at least it would have upheld the rule of law. This action of the state cannot be accepted in a democratic society which supposedly holds the rule of law in high esteem, demands transparency in government, and enacts laws such as the Right to Information Act.
It would have been the ultimate gesture of magnanimity to grant mercy to Kasab, the perpetrator of an unpardonable act who showed no mercy to others. If not mercy, then at least due process was to be expected.
Yug Mohit Chaudhry is a lawyer practising in the Bombay High Court.
COMMents
SHARE