[Originally written on 25 October, 2006]
Demand for clemency for Mohammad Afzal, facing death penalty in the Parliament attack case, has raised some serious questions. As per the Supreme Court’s directives, death penalty is resorted to only in the “rarest of rare cases”. In last several years, only one person was actually executed in India (Dhananjoy Chatterjee in 2004). Some other persons who have been sentenced to death are yet to be executed either due to their pending appeals or the clemency petitions or due to some procedural reasons. Experience shows that while several persons might have been sentenced to death by trial courts, the number of persons actually executed is extremely less after the process of appeals, clemency petitions, writ petitions after the clemency petitions, etc. In fact, as per the Amnesty International, the unconfirmed figure of the total number of all persons executed in India since 1947 till date is about 55 only. This has to be contrasted with the fact that in the year 2005 alone, at least 2148 persons were executed in 22 countries while a total of 5186 persons were sentenced to death in 53 countries.
One has to see the death penalty of Afzal in the light of the “rarest of rare” case of a shocking terrorist attack on the Parliament of India, the highest institution in the country, in which 9 persons (including 8 security personnel) were killed and 16 persons were injured. It was only due to the brave and prompt reaction of the security personnel that the Parliament and its members sitting therein could be saved from this terrorist attack. One cannot imagine the irreparable damage which could have been caused to the image of the state of India if the said attack had proceeded as per the plans of the attackers.
Whether a person responsible for such a dreadful act deserves clemency? What is the extent of the President’s power in this regard? This power under Article 72 has to be exercised on the advice of the Government. It has been held to be of widest amplitude capable of contemplating a myriad kinds of and categories of cases with facts and situations varying from case to case, in which the merits and reasons of state may be profoundly assisted by the prevailing occasion and passing time. At the same time, this power is not absolute and is even subject to judicial review in certain cases. For all practical purposes, this power will have to be exercised for two broad categories of reasons – legal & factual matrix of the individual case, and other reasons such as humanitarian and practical reasons.
The fact that the highest court of the land has confirmed the death penalty after weighing the evidence in a very detailed manner from all possible legal angles (it required 196 pages of a prominent law journal to cover the judgment!), applying the yardstick of “rarest of rare cases”, shows that the case can be safely presumed to be free of any legal flaws. In fact, the review petition was also rejected by the Supreme Court. Moreover, earlier the trial court as well as the High Court had both concurred on the death penalty for Afzal. That the Supreme Court confirmed the death penalty for Afzal while it did not confirm the same for 2 other accused persons, further shows that case against Afzal was on a strong footing. Moreover, there are no new legal developments in the case, discovered subsequently. In view of these reasons, there is no reason for the President to try find some legal defects in the case while deciding the clemency petition.
Coming to the other possible grounds for clemency such as practical, humanitarian, etc., can the Government afford to show mercy for somebody who is responsible for an attack on the Parliament itself! Secondly, where is the scope for showing mercy on humanitarian grounds for a terrorist for such a shocking act? In the unlikely event of the Government showing mercy, what message will be sent to the world at large, to the people of this country, to the security personnel (many of whom lost their lives), and to the terrorist organizations? How more “soft” can India become? A nation which cannot implement punishment for attackers on its Parliament does not deserve to get respect from anybody. Government which buckles under pressure of protests of sympathizers of terrorists will necessarily loose respect and sympathy from its 100 crore plus population. In fact, Government should be more resolute and firm after the protests against the proposed execution in case it is not to be seen to have been “blackmailed” or to be appeasing a particular section of the society. One should also keep in mind that there are already reports in the media about further blackmailing tactics being used by terrorist groups, e.g., kidnappings, etc. The Government should show determination and courage to be ready to face them head-on. A coward state cannot win the war against terror.
Failure to impart deterrent punishments to such terrorists and / or other hardened criminals under the criminal justice system gives rise to further deterioration in law & order as well as to the undesirable but real phenomenon of using short-cut methods such as encounter killings, many of which are supposed to impart summary justice to such criminals. There used to be around 300 encounter killings per year in Mumbai alone a few years back. A large number of encounters take place in J & K at the mere incidents of infiltration. The state has directly or indirectly permitted or at least tolerated such encounters. An encounter killing is legally justified mainly on the basis of two legal provisions, viz., power of a police officer to use all means necessary while effecting arrest under S. 46 of the Criminal Procedure Code (which may even extend to causing death when the person is accused of an offence punishable with death or with life imprisonment) when such person forcibly resists or evades arrest, and right of private defence under S. 100 of the Indian Penal Code. This is a ground reality staring in our face.
In such a background, how can it be wrong to execute a terrorist accused of a dastardly attack on Parliament whose death penalty has been confirmed by the highest court of the land after scrupulously following the detailed process of law?
