An execution most foul

In carrying out Afzal Guru’s death sentence, the government deliberately ignored the view of the Supreme Court and courts across the world that hanging a person after holding him in custody for years is inhuman

February 19, 2013 12:52 am | Updated 12:52 am IST

edit page inhumane hanging 190213

edit page inhumane hanging 190213

The execution of Afzal Guru on February 9, 2013 was an inhumane act by the Government of India. Afzal Guru was hanged seven years after the Supreme Court’s pronouncement of the death sentence on him on August 4, 2005 and over six years after his clemency petition to the President of India on November 8, 2006. During this period, he and his family remained in agonising suspense over his fate every day — a situation that is condemned by all civilised countries and our Supreme Court. The rejection of his petition by the President after over six years on February 3, 2013, was kept secret and deliberately not communicated to his family, lest it became the subject of judicial consideration as has been done in other cases of delayed execution. Within a few days of the rejection of his mercy petition, the execution was carried out in secrecy on February 9, 2013 without informing his family, and his body was buried in equal secrecy in a grave inside Tihar Jail, New Delhi.

Six years

A petition made to the President for pardon, reprieve or remission of punishment under Article 72 of the Constitution is a right of a convict and until the petition is rejected, the government cannot carry out the sentence. In disposing of the petition under Article 72, the President does not act at his discretion but on the aid and advice of the government. This was held by the Supreme Court in Kehar Singh ’s case in 1989. The crucial question was whether the execution could be carried out after a prolonged delay of over six years from the day Afzal Guru made his petition to the President.

The disposal of Afzal Guru’s petition became a political matter, with the BJP’s unseemly demand for his execution and its making it an issue in the ensuing elections. For its own political consideration, the government did not decide the petition made to the President. In fact, between 2006 and 2008, the then Home Minister deliberately instructed the Government of Delhi to delay responding to the Afzal Guru file sent to it. In 2008, Afzal Guru made a statement that revealed his mental distress. He said in an interview, “I really wish L.K. Advani becomes India’s next PM as he is the only one who can take a decision and hang me. At least my pain and daily suffering will ease then.”

When terrorist Ajmal Kasab was executed on November 21, 2012, immediately following the Supreme Court’s verdict on him, the Opposition again renewed its demand for Afzal Guru’s execution. Steps were then taken by the government to prevent the opposition from exploiting the situation. Kasab’s execution carried out in secrecy became the model for the execution of Afzal Guru. On November 15, 2012, President Pranab Mukherjee sent Afzal Guru’s file back to the Home Ministry for a fresh consideration of the mercy petition. On January 23, 2013, the Home Ministry recommended its rejection and on February 3, 2013, the President formally rejected the petition. The President’s rejection was then implemented by the Home Minister on February 4, 2013 and five days later in the early morning on February 9, 2013, Afzal Guru was hanged.

In executing Afzal Guru after a prolonged period in which he and his family suffered the agony of suspense, the government flouted a well-settled law laid down by the Supreme Court in several cases. In Edigma Anama vs. State of A.P. in 1974, Justice Krishna Iyer spoke of the “brooding horror of haunting the prisoner in the condemned cell for years.” Justice Chinnappa Reddy in T.V. Vatheeswaran vs. State of Tamil Nadu in 1983 said that a prolonged delay in the execution of a sentence of death had a dehumanising effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the Fundamental Right under Article 21 of the Constitution. He quoted the Privy Council’s observation in a case of inordinate delay in execution: “The anguish of alternating hope and despair, the agony of uncertainty and the consequences of such suffering on the mental, emotional and physical integrity and health of the individual has to be seen.”

Trauma of convict and family

In 1983, in Sher Singh vs. State of Punjab , the Court repeated the same observations, and in the larger Constitutional Bench in Triveniben vs. State of Gujarat in 1989 to settle the law, the Supreme Court again reiterated that a prolonged delay in execution would be unjust, unfair and unreasonable. The Court held that in the disposal of mercy petitions it has been universally recognised that the condemned person suffers a degree of mental torture even though there is no physical mistreatment. The Court held that if there was an inordinate delay in execution, the condemned prisoner would be entitled to move the Court to examine whether it was just and fair to allow the sentence of death to be executed. The disclosure of the rejection of the mercy petition was, therefore, mandatory. In the case of Jagdish vs. State of Madhya Pradesh in 2012, the Supreme Court highlighted not only the agony of the convict by inordinate delay of execution but also the agony and trauma of his close relatives.

In 1994, the Privy Council adopted the observations of the Indian Supreme Court and stated in a moving part of the judgment that “there is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time … To execute these men now after holding them in custody for so many years would be inhuman punishment.” The European Court on Human Rights in 1989 and the Canadian Supreme Court has also has taken a similar view. In executing Afzal Guru, the government deliberately ignored the views of our Supreme Court and other Courts in other jurisdictions.

Apart from the torment and agony suffered by the death row convict, it has been universally recognised that the agony is suffered also by his near and dear ones in the same manner by the delay. A leading textbook on death penalty states that “the trauma for families is specially evident when the date of the execution draws near. In recognition of this, it appears to be the common practice in most retentionist countries to allow relatives to visit the condemned person prior to execution, to inform them of the date of the execution, and to deliver them the body for burial.”

In Afzal Guru’s case, his family members were not informed of his imminent execution and were unable to meet him one last time before his execution. The government’s claim that it informed them by a speed post letter dispatched on February 8, 2013 is meaningless. The letter was delivered to the family in Kashmir two days after his execution!

In March-April 2012, the Supreme Court heard petitions by two death convicts — Devender Pal Singh Bhullar and Narender Nath Das — on the validity of carrying out executions after mercy petitions were delayed for eight to 11 years. The Court considered the cases of other death row convicts also whose executions were prolonged and directed the Government of India to give details and files relating to the convicts. The government then gave the details of the death row convicts whose mercy petitions were pending with the President of India.

Legality of prolonged delay

One of the pending cases was that of Afzal Guru. The Court appointed me as amicus curiae to consider the larger question of the execution of convicts after inordinate delay. In the course of my submissions, I referred in particular to the facts of the Afzal Guru case. The hearing concluded on April 19, 2012, and judgment was reserved in the case. The government was fully aware that the legality of prolonged delay in the execution of convicts was pending consideration by the Supreme Court. It was incumbent upon the government to await the authoritative pronouncement of the Supreme Court on the pending petitions but the government carried out the execution of Afzal Guru on 9 February, 2013.

Overall, Afzal Guru’s execution will remain the most callous death sentence carried out by the government of India.

(The writer is a Senior Advocate of the Supreme Court and former Solicitor General of India)

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