Death row convict >Mohammed Arif alias Ashfaq , a Pakistani national found guilty of conspiring to organise the attack on the Red Fort complex in Delhi in 2000, in which two Army soldiers and a sentry were killed, has been given one more opportunity of an oral hearing. His lawyers have been allowed by the Supreme Court to file a fresh petition seeking a review of the death sentence confirmed by the court in August 2011 so that the matter can be heard once again in open court. The court has once again demonstrated its inexhaustible capacity to deal with death penalty cases in a spirit of compassion. A September 2014 Constitution Bench judgment ruling that a 30-minute oral hearing in open court for every review petition involving the penalty is a constitutional requirement was not applicable to Ashfaq, one of the petitioners before it. This was because the limited oral hearing in death row cases was just an exception to the general rule that review petitions be decided by circulation of the papers among judges. The exception was limited to those cases in which both a review petition and a subsequent curative plea had already been rejected. In Ashfaq’s case, the court declined to review his sentence in August 2012 and the curative petition was rejected in January 2014. Chief Justice T.S. Thakur has, however, decided that he deserves a concession in order that even the slightest possibility of error may be eliminated, for he was the sole convict who did not get the benefit of the earlier verdict.
After upholding Ashfaq’s death sentence and declining to review it, obviously because there was no apparent error, is it not mere moral tokenism to afford him another oral hearing? Howsoever one may answer this question, it cannot be disputed that the Supreme Court has been dealing with cases culminating in the >death penalty in a liberal spirit in recent years. It has delivered a series of judgments widening the scope of the clemency jurisdiction. Even when constrained by an earlier judgment by another five-member Constitution Bench allowing the disposal of review petitions without an oral hearing, the Bench, in 2014, carved out an exception for death row cases alone by making oral hearing an integral part of ‘reasonable procedure’. By extending the benefit to Ashaq, a Lashkar-e-Taiba terrorist found guilty of plotting and facilitating an audacious attack , the court is enhancing the value of due process. Some critics may question the wisdom of being magnanimous towards such offenders and not taking a stern stand against all forms of terrorism. This apparent conflict between the thirst for condign punishment and the twinge of conscience about sending one to the gallows will persist as long as the death penalty remains on the statute book. Until it is well and truly abolished, it is only the court that can humanise the law and procedure relating to death and mercy.
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