NEW DELHI: The Madras High Court (HC) stay on execution of Rajiv Gandhi’s killers raises a question: have Presidential pardons become irrelevant? The case of Ajmal Kasab is pertinent, for he appealed to the Supreme Court (SC) against the Bombay HC death sentence.
The apex court will spend time reexamining previous judgments.
Evidence and arguments will be presented all over again.
If the SC also pronounces the death penalty, then Kasab can seek clemency from the President of India under Article 72 of the Constitution. Twenty nine clemency petitions are already pending before the President, to be decided according to the queue decided by Home Minister P Chidambaram. Kasab has a long way to live at taxpayer’s expense.
In the Rajiv killers’ case, their lawyer Ram Jethmalani cited inordinate delay in deciding the mercy petition filed by them in October 1999—the 11- year wait made them eligible to evade execution, the petitioners said. There is a precedent. In the Triveniben vs State of Gujarat case of 1999, the SC held that “undue delay’’ in execution of a death sentence gave the convict a window to approach the court for commuting the sentence.
What will Kasab’s lawyers do if the President denies him a pardon? Is the very concept of justice and retribution being made a mockery of by clever lawyers and power hungry politicians? When the Lankan Tamil convicts in the Rajiv case—as political a case as can be—use this particular ruling to prop up their eligibility to walk free, it becomes more than a mere technicality or legality. The appeal is nuanced with suggestions of human rights violation. The trio has pointed out how they’ve already suffered solitary confinement in jail for two decades, waiting for mercy.
Now that it has been denied, the very wait for it has become a new legal weapon, which they are wielding as a tactic of the last resort.
There’s no denying that the wheels of justice have moved rather slow. It took five years for the mercy petition, sent to the then President in 1999, to travel back to Rashtrapati Bhavan with the government’s recommendation, favouring rejection of the plea. Yet another six years for the President to act on the advice and issue the order. Most clemency pleas are from those convicted of murder or rape. Chidambaram inherited 26 cases, and he resubmitted 23 along with some more.
The President’s decision was received in 13 cases in about two years and three months.
But what makes this particular case, involving the assassination of a former prime minister, unique, is what it threatens to do or undo. Apart from opening up Indian TV studios to the debate on whether the country needs to take a fresh look at capital punishment, it has opened a Pandora’s box. More so as the Madras HC stay on the execution was preceded by a unanimous resolution of the Tamil Nadu Assembly to get the trio a reprieve.
A senior AIADMK functionary, however, rationalised both the Assembly resolution and the Chief Minister’s initial stand, which seemed opposed to reopening the case. “These three people have already served 20 years in prison. This in itself amounts to death penalty. You cannot hang someone twice,” he said. Stressing that there is no contradiction between the Assembly, mirroring the people’s voice, and the CM’s earlier stand, he added: “She only said that she had no authority to waive a death sentence passed by the Supreme Court and seconded by the President. She’s right in saying that. That’s why the Assembly resolution is in the shape of an appeal to the President.
The two are not contradictory, but complementary.” Senior lawyer K T S Tulsi, speaking right after the Tamil Nadu Assembly resolution, nuanced his criticism in a manner that left a window open for a legal resolution of such cases. “It has taken a political turn, and that’s unfortunate. But the political controversy is completely irrelevant. If at all the assassins get off the hook and their death sentence is commuted, it will be on the basis of the human rights jurisprudence of the Constitution.” The political resonance was felt all over—in a country not short of flashpoints—was but inevitable. First the Madras HC stay order was preceded by a unanimous resolution of the Tamil Nadu assembly to get Rajiv’s killers a reprieve. Then Afzal Guru finds champions in Kashmir, a membership that may spread to other states where minority politics decides power.
In Punjab too, the case of Khalistani Liberation Front militant Devinder Pal Singh Bhullar became an prickly, emotive issue— the political class spoke in favour of clemency. But no pardon has been requested so far.
The Tamil Nadu case is the beginning of muddied waters. It has set a precedent for regional politics to overriding even the presidential decree.
Congress spokesperson Abhishek Manu Singhvi, however, makes light of the political aspect.
He said: “The Congress has always believed and repeatedly articulated that such matters are those of constitutional law, statutory law and administrative procedure, on which perhaps no political party needs to comment.
These matters are heavily subjudice and must await and abide by those decisions.” In contrast to this seeming obfuscation, the BJP comes across as the one party with the most strident and steadfast views on the death sentence. Chief spokesperson and Rajya Sabha MP Ravi Shankar Prasad said: “Whoever is involved in breaking the integrity of India through violence, like killing of innocent people or killing a former prime minister, deserves no mercy.
Once the highest court and the President has taken a decision, that should be respected.
The idea of India is bigger than politics.” The BJP’s Shahnawaz Hussain too was quite categorical in blaming both politicisation and delay. “The BJP’s stand is clear. These cases should not be politicised. Whoever has acted against the nation has to be hanged. There should be no delay at all. It is the delay that has resulted in the stay of the Rajiv Gandhi case convicts. Now, Ajmal Kasab and Afzal Guru’s cases must be expedited.” It may be one thing to ask— appropriately so in this day and age of meta-legal reformism on the street—whether it’s time India did away with the death sentence, whether retributive justice has any place in a modern state, whether it should continue with the nineteenth century practice of hanging a convict to death. It’s good TRP fodder. But in the absence of such a question, the law as it stands, is paramount. And it should apply equally to all, without even a hint of relativism.
That’s why the word ‘delay’ has acquired an all-new legal connotation, fraught with political consequences, and the strain is showing on the whole system of Indian jurisprudence.
