facebook.com/Outlookindia twitter.com/outlookindia digimag.outlookindia.com instagram.com/outlookindia youtube.com/user/OutlookMagazine

No Commuter, This President

Pranab Mukherjee’s reign will go down in history as a trigger-happy one
AFP (From Outlook 25 February 2013)

The President of India acted like a home secretary, says constituti­o­nal lawyer Rajeev Dhavan. At a time when the highest office of the land and the executive were totally in sync—playing a swift, active role in sending a man to his death—stinging appraisals can perhaps be expected.

Did Afzal Guru get a chance to app­eal against Pranab Mukherjee’s decision to reject his clemency plea? No. On February 9, he went to the gallows without knowing he could have made one last appeal—a proviso the courts of the land have upheld, to allow a man on death row to avail of every opportunity to save his life. The right to life is sacrosanct, says India’s Constitution. Even the state cannot take it away. And even the President’s rejection (or assent) on a mercy plea is subject to judicial review.

Post facto, questions are now being asked about the Afzal hanging. Could the President have acted otherwise? Could he have commuted the sente­nce in light of the fact that Afzal had already spent 11 years in prison, over seven of them on death row?

Advertisement

Old home ministry hands say the president has several options—death is the last of them. The death penalty is often seen as the remnant of a model of retri­butive justice that should have no place in a modern democracy. Yet, the law of the land thinks it fit to take away life in the rarest of rare cases—with the courts defining what such cases are. The President’s clemency power, and its subjection to judicial review, is part of the provided checks and balances.

Maybe Pranab deemed Afzal a fit case for hanging after weighing all options laid out by the law officers. Maybe, like the courts, he too was convinced the “collective conscience” had to be assuaged. But does Kashmir have a stake in the collective conscience? “The President has to weigh all the consequences of his action,” says Dhavan. Says ex-attorney general Ashok Desai, “The review of a death sentence is among the most solemn duties Presidents perform.” But he feels terrorism calls for a certain res­ponse—“a transparently fair trial,  but stern punishment for the guilty.”

Advertisement

Normally, when a mercy petition is filed, the home ministry sends it to the state government for comments. After factoring these in, it sends its recommendation to the President. In Afzal’s case, did home minister Shinde ask for CM Omar Abdullah’s comments? If so, what did he say? Did Shinde work against Omar’s comments? The home minister’s recommendations are binding on the President. The latter can request him to reconsider his advice once. But if the minister reiterates it, the door closes. Pranab did send the file back for reconsideration. When it came back to him the second time, he signed the death warrant. What he also did was not exercise the other Indian option: sitting on the file.


By Anuradha Raman in New Delhi

READ MORE IN:
AUTHORS: Anuradha Raman
SECTION: National
SUBSECTION: Cover Stories
OUTLOOK: 25 February, 2013
Download the Outlook ​Magazines App. Six magazines, wherever you go! Play Store and App Store

Post a Comment

You are not logged in, please Log in or Register
  • Daily Mail
THE LATEST ISSUE
CLICK IMAGE FOR CONTENTS
OUTLOOK ON TWITTER
Quiz
Kashmir has been the scene for massive protests following the killing of Hizbul commander Burhan Wani on July 8. “Non-lethal” pellet guns used against the protesters have blinded many and 45-odd people have died in the face-off against security forces. The scale of protests have led to frayed tempers in the mainland with many resorting to high-voltage jingoism. But how well do you know Kashmir? Find out, take this quiz.
QUIZ STARTED ON: Jul 25, 2016
Advertisement