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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?
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.”
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