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Updated: November 22, 2012 04:32 IST

Keeping the nation in the dark

V. Venkatesan
Comment (19)   ·   print   ·   T  T  

By not publicly disclosing the reasons for rejecting Ajmal Kasab’s mercy petition, Pranab Mukherjee missed an excellent opportunity to contribute to the rule of law

President Pranab Mukherjee’s decision to reject the mercy petition submitted by the lone convict in the 26/11 Mumbai terror attack, Mohammed Ajmal Amir Kasab, is an instance of how public perceptions about a convict’s guilt can camouflage the government’s duty to explain the decision. The President’s decision is shrouded in secrecy, throwing little light on the principles which guided it.

Under Section 4(1) (d) of the Right to Information Act, every public authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons. This provision has no exemptions. The government erroneously denies information to RTI applicants seeking reasons for its mercy decisions, taking shelter under Article 74 (2) which only bars inquiries by courts into Ministers’ advice to the President.

Significant

The reasons for rejecting a mercy petition are significant, not only from the point of view of the convict who has sent it, but for other convicts who may use them as precedents while drafting their own.

Non-speaking rejections render the object of the President’s mercy power in a democracy meaningless, and its exercise arbitrary. They only leave the field open to uninformed commentary in the media about the President’s record in disposing of mercy petitions.

There was much misconceived criticism in the media of the former President, Pratibha Patil’s commutation of death penalties of 35 prisoners during her term forcing her to come out with a press release, while in office, in her defence.

Article 72 of the Constitution which enables the President to grant pardons, etc., and to suspend, remit or commute sentences has its parallel provision in Article 161 which enables the Governor to exercise similar powers with regard to matters to which the executive power of the State extends. The President or the Governor acts on the aid and advice of the Council of Ministers, while exercising the powers under these provisions. Unlike the Governor, however, the President may require the Council of Ministers to reconsider such advice, and the President shall act in accordance with the advice tendered after such reconsideration.

Scholar Bikram Jeet Batra has found that India’s first two Presidents, Rajendra Prasad and Radhakrishnan, stretched the limited powers available under the Constitution, and tried to assert their moral authority over the executive, by persuading it to reconsider its initial advice to reject mercy petitions in several cases.

Their successors — with the exception of R. Venkataraman and S.D. Sharma — by and large followed this legacy. Implicit in this legacy is the valid assumption that the pardon power can be exercised if there are compassionate grounds which may favour the convict, whatever the horrible nature of the crime found to have been committed. A corollary of this assumption is that the Supreme Court’s findings which resulted in the conviction and sentencing of the appellant convict would hardly matter to the President, if the compassionate grounds are sufficient to accept a mercy petition. The President and the executive sometimes differ on this, and the resolution of this difference often takes time.

When it appeared that the executive was not likely to revise its initial advice to the President, the Presidents used the option to delay the rejection of a petition as long as they could, even by not acting on it till the completion of their tenures. Presidents K.R. Narayanan, Abdul Kalam, and Pratibha Patil used this option, as the Constitution does not impose any time limit for the President within which a mercy petition must be disposed of. Silences in the Constitution also convey significant messages, and an unstated discretion to the President, when he or she disagrees with the advice tendered by the government, to delay the decision can be easily inferred.

Experience shows that successive Presidents stand vindicated by their pursuit of this legacy. Most of the 35 commutations decided by Ms Patil were part of the backlog left by Mr. Narayanan and Mr. Kalam. In many cases, the Ministry of Home Affairs (MHA), acting on behalf of the Council of Ministers, had initially advised the President to reject the petition. However, when the President asked the successor government and a new Home Minister to reconsider the earlier advice, it resulted in commutation.

Sometimes, even after the President rejected a mercy petition, hanging of the convict was stopped, on the basis of a fresh mercy petition, which was later accepted by the same President or his successor.

Case of Parmatma Saran

The earliest example of this is that of Parmatma Saran, whose mercy petition file is preserved in the National Archives. Saran’s was a unique case in the entire history of mercy petitions in India. The Supreme Court, like the courts below it, found him guilty of killing his wife by burning her, and did not find any mitigating factor in his favour. The Home Ministry first concurred with the Court, and President Rajendra Prasad rejected his mercy petition on January 10, 1962, on the basis of the Ministry’s advice.

However, before Saran could be executed, the MHA received a fresh mercy plea from Saran’s father-in-law in the interest of his five-year old grandson, born out of his deceased daughter’s marriage with Saran. This tilted the views of both the Home Ministry and the President in favour of commutation, as they found it rare that a victim’s relative could plead for mercy.

The commutation of the death sentence of R. Govindasamy to life imprisonment offers a dramatic example of how a flip-flop can happen after the President duly rejects a mercy petition. President Narayanan rejected his mercy petition, on the basis of the then NDA government’s advice, in October 1999. The same NDA government, however, stayed his execution, following various appeals from Tamil Nadu favouring commutation of his sentence. Govindasamy was the first convict to get relief from Ms Patil, who commuted his death sentence to life imprisonment on November 18, 2009 following the receipt of a fresh mercy petition. Satish was another recent case. The former Home Minister, Shivraj Patil, had recommended rejection of his mercy petition to the President in July 2008. But Ms Patil, on the basis of a fresh advice from Shivraj Patil’s successor, P. Chidambaram, commuted Satish’s death sentence to life imprisonment on May 8 this year.

Ms Patil left the mercy petitions of 16 convicts undecided. This suggests that she might have disagreed with the government’s advice to reject the mercy petitions of these convicts. One of these is that of Saibanna, who the Supreme Court admitted it had erroneously sentenced to death, by following a wrong legal precedent.

The Supreme Court admitted similar error while sentencing to death 12 other convicts. Fourteen former judges have, in a recent appeal to the President, justified the commutation of the death sentences of these 13 convicts, to life imprisonments.

Of these, five have already got their death sentences commuted to life sentences by the Governor or the President. The President will, hopefully, examine mercy pleas of the remaining eight, in the light of the former judges’ appeal.

The last hanging in India was that of Dhananjoy Chatterjee in 2004. Batra has found from MHA files under the RTI Act that the briefs prepared for President Kalam provided an inaccurate and incomplete view of the 10-year delay in his execution, ignoring official negligence. He suggests that a reasoned and transparent decision could have made it easy for the Supreme Court to intervene on the ground that relevant material was not placed before the President, before executing Chatterjee.

President Pranab Mukherjee missed an excellent opportunity to contribute to the rule of law, by not publicly disclosing the reasons for his decision on Kasab. Every death row convict has an inherent right under Article 21 — even if so far untested by the Courts — to be apprised of the reasons for the rejection of his mercy petition, which would deprive him of his life. Others are entitled to know the reasons as well under the RTI Act.

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Great article.News papers like the hindu deserves praise for sticking to their principles when all other news agencies celebrated the death ,to increase their rating or to exploit the situation or fear of public anger.Weather kasab deserve hanging or not is not the question but his right to know about his fate should have given some importance.
Its a gross mismanagement and violation of constitutional( it hardly matters whether he is an Indian citizen or not) and humanitarian rights by the president and union home minister.
By hanging a person who was sure of his death in mission is not a victory. The timing of hanging also raise suspicion.UPA may have sacrificed his life to rebuild its tarnished image or for preventing saffron fundamentalists from utilizing it.
It was matter of international consequence.It may also force pakistan to speed up the hanging of our innocent sarbjith singh as a counter tactic or due to internal pressures.We should introspect on what we have gained then.

from:  vishnu
Posted on: Nov 23, 2012 at 21:45 IST

Why other commenter are mixing two different things. Irrespective of the fact that guy killed many unarmed civilians, was therefor a terrorist and for the same reason should have been awarded toughest punishment, which he was, there is not ground for not giving him same consideration as any given to any human being. Every convict, irrespective of ones nationality has right to appeal for pardon and should be informed of grounds for denial of it. It is simply principle of fairness, no justice can be done without being fair.

from:  Niel
Posted on: Nov 23, 2012 at 20:30 IST

I would like to differ with the author that the president has taken
the decision by keeping the nation in dark. Everybody knew that the
mercy plea has been rejected on Nov 5. It was only a period of time
before the punishment was executed.On not listing the reasons for
rejecting the mercy plea, the president has not done anything wrong.It
is beyond obvious that Ajmal kasab has killed many innocents in a
ghastly killing spree that took place on 26/11.Also the public was
persuading the executive as well as the judiciary for quite a long
time to award death punishment to the accused.It is not at all a
malady that the reasons for rejection of mercy plea have not been
enumerated as public sentiment was in concordance with the
execution.There could have been no other logical conclusion plausible
except death sentence.By executing Kasab ,India has given an emphatic
message to Pakistan that it is not going to tolerate such mindless
genocides which are being planned from it's soil.

from:  Shaik Rizwan Ahmed
Posted on: Nov 22, 2012 at 17:35 IST

(1) Ajmal Kasab’s hanging has prompted us all to discuss whether death
sentence must be done away with and whether the President of India
should spend his personal time to consider each and every case of a
prisoner who is awaiting execution and who has applied for president’s
mercy. (2) My queries are two (a) If death sentence is commuted, how
do we convince the victims’ families and relatives that justice has
been done? (b) What is the invisible social cost in the form of
stress caused to the victim’s near and dear ones as also the expenses
of maintaining security etc if prisoners who have taken some one
else’s life or lives are allowed to live in this world? (3) Answers to
all such queries are not easy and although there cannot any
justification of the death sentence, unless we are able to control
crime in our society, people will not be ready to abolish death
penalty.

from:  Narendra M Apte
Posted on: Nov 22, 2012 at 17:33 IST

In the circumstance like this, it is really tough to take decision on the basis of reasons and laws. We talk about laws, mercy, rules, reasons, etc, but for a moment think about the families of the people who died because of 26/11 then we might not be able to reach to a quick decision based on all the existing laws and precedents. I suppose that whatever president did is not vindicated but it is not even completely arbitrary. This decision may smack of arbitrariness but president must have done his homework before reaching this decision.

After all this decision not only concerns two neighboring countries but the act of terrorism against innocent people.

from:  Pradeep Mishra
Posted on: Nov 22, 2012 at 17:11 IST

Had this been case with other convict , i would have welcomed the suggestion of writer . But one for which it had been written did not deserve the same. No matter how well the reason have been explained by President of India, intellectual community,media would have find few loop holes and had questioned Govt decision or explanation . I think for terrorist like Kasab, giving reason for declining his mercy plea would have fueled another controversy.

from:  Pawan
Posted on: Nov 22, 2012 at 17:00 IST

RTI campaign sheds light into darkness in India. It continues to
reveal the weaknesses of the concerned public offices, officials and
the politicians, and thus, contributes to make them more responsible
and careful about what are doing to the interest of the rule of law
in India. Homage to RTI activists!

from:  Saidur Rahman
Posted on: Nov 22, 2012 at 14:29 IST

V. Venkatesan has made specious arguments in his article while passing judgement on honorable President Pranab Mukherjee. His argument that the laws of land should be adhered to at all times is fine. However, he has missed one crucial fact that Kasab's acts of mass murder of innocent civilians was carried out in a public place a crowded VT Railway station. Most convicts on the death row in India are not terrorists. Most have killed someone out of rage and outburst of anger. Kasab was a trained terrorist and highly motivated so one of the 80 counts of charges against him of 'Waging a war against the Republic of India' is justified. Kasab's acts of mass murder are unprecdented in India's history, therefore, the Government of India and the President are justified in their decision-making. An enemy of the State has to be dealt with effectively to deter others from embarking on smiliar ventures. It is time India sheds its spineless image. Critics like Ventakesan add to this weak image.

from:  Sudeep Sonawane
Posted on: Nov 22, 2012 at 12:35 IST

Excellent voice of reason by Mr. Venkatesan.

from:  Venkat
Posted on: Nov 22, 2012 at 11:15 IST

An excellent dissection of the process and obviously someone bungled. While the outcome may be politically correct and satisffying to most, the process must be seen to be transparent and legitimte, beyond question. The very fact such a criticism of what happened is possible is the strength of Indian democracy and press freedom.

from:  Saratchandran
Posted on: Nov 22, 2012 at 11:14 IST

Whatever may be the rule of law, it is as simple as rejecting mercy for a guy who needs to be punished. I dont think the President needs to reason this.

from:  Sri
Posted on: Nov 22, 2012 at 11:10 IST

This comes as a surprise news on Wednesday morning! The shroud of secrecy which government took is warranted. The case of Kasab has an indirect link to "Nations Pride". Taking a case of United States who eroded the whole of Afghanistan when inflicted by terrorist act. The delay in executing Kasab raised many questions and after the hasty execution at gallows also raises many. Why?.
Taking Life is at nobody's behest, however warranting the RTI u/d Sec 4(1)(d)for undone "Disclosure" should not be raised at this juncture to weaken the intimidating "Capital punishment". The president of India has wisely taken the decision which have no issue and should be "revered" instead purged with "questionability" . India is a nation of great pride any disrespect through act of terrorism will not shake the unity, integrity and cherished culture. We will keep retorting cohesively .

from:  Rishi
Posted on: Nov 22, 2012 at 10:51 IST

He is an ordinary political president slightly better than pratiba &so he will not reveal his mind to the nation though intellectual/ responsible presidents will take this opportunity to inform the public reasons for upholding death penalty etc., Presidents should not be from any political class/party.only people who are impeccable integrity & who had contributed fairly largely in some way or other to the society must be the basis for selection.

from:  ramachandrasekaran
Posted on: Nov 22, 2012 at 10:25 IST

Forget all the legal mumbo-jumbo. It is time that India passes a law abolishing death penalty. What is the difference between Kasab killing people in Mumbai and the government killing him in Pune? Killing is killing. One killing does not justify the other. In a tragic irony, this hanging took place in the same jail where Mahatma Gandhi was held prisoner by the British for his non-violent protests agains their rule. In the land of Gandhi there should be no killing by the government. Death is not a penalty. It is the end of life purely based on the principle of revenge. It has no deterrant or other socially redeeming values.

from:  K.V. Nagarajan
Posted on: Nov 22, 2012 at 10:13 IST

Presidents rejecting the plead of a convict or commuting death sentences to life imprisonment do not seems a great deal. In every death sentences, if commutation is done, the death sentence will lose its relevance. In my view commutation should not be exercised when it is concern at country level. The patriots of India are waiting for Afjal case
The UPA government backlash reaction (within seventeen day) after rejection from the presidency house is appreciated but not awarding death sentence should not be motivated by concern of losing vote back

from:  Pashupati
Posted on: Nov 22, 2012 at 10:02 IST

THe article keeping the nation in the dark is ridiculous.by publicising hanging we
should have invited more trouble.some facts like nations defence,hangings, should always be secret. since so many years judgement is taking place and the verdict given what more is needed?already it is too late and,and the people are tolerant for the delay though the government spent so much for criminal and vip treatment to him.the administration at least awake up now and be alert in defending the common man and country and take all precautions in future for not recurring such loss.

from:  Kvl shanta
Posted on: Nov 22, 2012 at 08:37 IST

It's the MHA's advice to the President that should be published and not the President's personel opionion on awarding/non-awarding of mercy petitions to the individuals.
In the case of Kasab, no explanation is required. The courts decided his fate,MHA concurred with it and the population like one welocmed it. Period,

from:  mani sandilya
Posted on: Nov 22, 2012 at 08:15 IST

What is there to disclose reasons for rejecting the mercy petition of Kasab by the President, when everyone knows about it. Though the President has powers to either remit the sentence or rescind the death sentence, he has only gone with the orders of the Supreme Court.Under the circumstances, there are no new reasons to disclose to the public.

from:  JAYARAMAN V S
Posted on: Nov 22, 2012 at 07:26 IST

The issues of legalities and technicalities pertaining to disclosure
of facts might be raised but some other issues need to be considered
as well.Sometimes we commit ourselves to scholarly complexity so
speciously that we fail to realize that beyond the pages of books
exists a real world-world of simple mortals.They have an ordinary
aspiration of living with emotions and sentiments held reasonably
intact.Talk to any family of victim of such acts,you won't feel the
need to churn the extraordinary pages of law books full of jargons for
an answer-no mercy whatsoever for perpetrators of such crimes and no
explanation.Let's not complicate things. Kasab's case was too obvious
to deserve an explanation.

from:  Sushant Gaurav
Posted on: Nov 22, 2012 at 05:03 IST
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