PM's closing remarks at the first meeting of the National Committee on Direct Transfers, in New Delhi on November 26, 2012.

“ We have just concluded a very useful round of discussions about a very important initiative that the government has taken.

The government today spends huge funds on schemes and programmes for the benefit of the common man and the under-privileged sections of society. These schemes have the potential to bring about improvements in the lives of a large number of our people provided they are targeted correctly and implemented effectively. The funds that are provisioned for direct benefits like pensions, scholarships and health-care benefits must reach the intended beneficiaries without delays and leakages. Apart from these direct benefits, the government also provides an amount of over 3 lakh crore Rupees in subsidies which too must reach the right people.

Direct Cash Transfers , which are now becoming possible through the innovative use of technology and the spread of modern banking across the country, open the doors for eliminating waste, cutting down leakages and targeting beneficiaries better. We have a chance to ensure that every Rupee spent by the government is spent truly well and goes to those who truly deserve it.

I am happy at the widespread support that I have heard across the table for Direct Cash Transfers. I have also listened carefully about the challenges that lie in our way in moving to a system of Direct Cash Transfers. In the coming days we will need to make every possible effort to address these challenges.

The twin pillars for the success of the system of Direct Cash Transfers that we have envisioned are the Aaadhaar Platform and Financial Inclusion. If either of these pillars is weak, it would endanger the success of the initiative. I would expect the Finance Ministry and the Unique Identification Authority to work in close coordination to achieve a collective goal.

To move closer towards the goal of Financial Inclusion, the banking system perhaps needs to integrate the post office network, especially in the rural parts of the country. It also needs to ensure that the front end infrastructure is in place all over the country, both through the existing modes of banking and through newer innovative ones, so that people have no trouble in opening bank accounts and withdrawing and depositing cash. Ideally, the common man should be able to open a simple bank account on demand if they have an Aadhaar Number. This would have many other benefits too, beyond cash transfers. For banks, the increase in the number of account holders would be an investment in their own growth. The Unique Identification Authority must ensure that the coverage of Aadhaar is adequate as per the rollout plan and no one is left out. An Aadhaar Number should be available on demand if beneficiaries are getting left out.

I would urge the individual ministries to work in right earnest for implementation of the Direct Cash Transfers initiative. They will need to digitize their databases, most of which are with the States, and seed them with Aadhaar numbers. You will be provided help by both the Unique Identification Authority and the IT Ministry. But, you will in turn need to assist the States.

This is a program in which the implementation capacity of our government will be tested. We must ensure at all times that there is no duplication of effort, and technology is used to the fullest for efficiency gains.

The timelines we have set for ourselves are ambitious. Fifty one districts are to rollout from January next year and 18 States from April. And the rest of the country later in 2013. I have no doubt we can succeed in achieving these goals provided we work sincerely and collectively.

I wish you all success in your efforts to put in place a system of Direct Cash Transfers.”

Striking at the Root of Corruption

Corruption is nothing but a reflection of the distribution of power within societies. The country is where it is because the political system is self-perpetrating and no party is accountable to anyone except a coterie of people that dominates all decisions. Unless the political system is accountable, going after individual cases of corruption will achieve little.

Slew of anti-corruption bills

By making a single point demand for a Jan Lokpal, to the exclusion of all else, Anna Hazare’s agitation became circumscribed by its own rhetoric. Expectedly, the government response was a slew of anti-corruption bills that have been introduced in Parliament, unheard of in the annals of the past six decades. From 2010, in a span of just two years, as many as 10 anti-corruption bills have been tabled including the disputed Lokpal bill, the forfeiture of benami property, foreign bribery, money laundering, and whistle-blowing bills plus five more — all aimed at deterring specific acts of corruption or purporting to give corruption-free public service as a right. And it was not just the Central government that showed this eagerness. Bihar, Rajasthan, Jharkhand and Odisha have actually enacted laws which can result in the attachment of ill-gotten property of public servants — sometimes pending investigation.

Undeniably, the citizenry will applaud such measures, frustrated and angry as people are about corruption. But wittingly or unwittingly, this response has deflected attention from a much larger issue. None of the bills or laws addresses the fountainhead of corruption — the opaque management of political parties which includes the source and deployment of their funds.

The Second Administrative Reforms Commission (ARC 2009) underscored the large-scale criminalisation of politics, illustrating how the participation by criminals in the electoral process was “the soft underbelly of the Indian political system” leading to “the flagrant violation of laws, poor quality of services, protection from lawbreakers on political, group, class, communal or caste grounds, partisan interference in the investigation of crimes, the poor prosecution of cases, inordinate delays that last for years, high costs of the judicial process, mass withdrawal of cases and indiscriminate grant of parole.”

What is of great importance is the open admission that votes are in fact secured through large, illegal and illegitimate expenditure on elections. This has been termed as the starting point of corruption making cleansing elections the most important route to bringing principles into politics. The Lokpal brouhaha has deflected attention from issues infinitely more important for going after dishonest politics, which seems to be all-pervasive.

And the context matters too. Much of India lives in as unequal a world — comparable in fact to pre-industrial Britain. Feudal mindsets prevail and the exercise of patronage is expected. In addition, in India, money power can control decisions the voter makes. Bound by the mores of a largely agrarian way of life, the poor remain simultaneously protected and penalised not by the law and the police as much as by feudal lords, often having criminal records. Indian political parties had long used these local sardars and strongmen as trusted allies for defeating opponents. But the latter have moved up in life by increasingly joining the political fray as candidates — not just supporters, and they have joined to win.

According to the Annual Report of the Association for Democratic Reforms (ADR), among 543 elected Members of Parliament who were elected in the 2009 election, 162 (30 per cent) had criminal cases pending. Five years earlier, that figure was 24 per cent. Meanwhile, the votes needed to win a seat have fallen to as low as 15 per cent. Criminal elements that once pulled in votes for party candidates are now getting voted to power themselves, gaining social respectability and public esteem in the bargain. Meanwhile, campaign-spending limits being easy to flout, buying the voter is easily managed.

More worrisome than individual corruption is the widespread concern that funds are collected by political parties and parked in secret bank accounts abroad to be ploughed back to finance elections often by hook or by crook. Since fund management is confined to a handful of people in each party, it gives enormous power to the top leadership which controls the deployment of funds and all that accompanies it. When the choice of candidates is intrinsically linked with money power, quid pro quos, and IOUs, clean candidates without money or political pedigree do not stand a ghost of a chance. And it goes without saying that once illegal and illegitimate expenditure is incurred on winning elections, there can be no prospect of honest dealings thereafter.

In the OECD countries with which we frequently draw comparisons, three qualities on a scale of eight, considered the most important attributes required from members of the political executive are objectivity, impartiality and neutrality. In those countries, a Minister is expected to publicly commit himself to observing ethical principles if he is to set an example to public servants.

In India, talk of ethical conduct is laughed at; civil servants take their cue from the standards of probity they are witness to — superiors in the service and their political bosses. Until political parties field clean candidates and promote and reward them, a climate of ethical dealings simply cannot emerge.

Expecting the clean up to come only by reinforcing anti-corruption laws though necessary, will divert attention from the real issue of corruption — how political parties collect funds and give tickets. The only way this can change is by educating voters on the dynamics behind the power play. Simply put, it means having knowledge about the origin of party funds to provide insights into the interests that back a political party. Equally how such contributions might influence future policies —including the future outlook for using public funds and natural resources.

It should come as no surprise that when ADR sought information on political party funding, using RTI, all political parties with the exception of the CPI (M) responded that they were not bound to provide such information. This, when income tax exemptions worth hundreds of crores of rupees, land and accommodation at nominal rates, and free airtime, are all provided at public cost. A full bench of the Central Information Commission (CIC) met in September to take a view on this. But major political parties shied away.

The key issue

Whatever the outcome, it is unlikely that the sources of party funding would be declared in the foreseeable future. But that is the key to understanding the compulsions of political parties and the decisions they make. One way of overcoming the clandestine collection of election funds would be to introduce state funding of elections as so many countries have done. More importantly there is a need for laws that mandate transparency in the deployment of political party funds coupled with rules that democratise inner party functioning. Unless the monopoly that a small clique that holds the reins of power in almost every party is freed, new blood can never transfuse into the political arena.

A Bill called the Registration and Regulation of Political Parties (2011) has been drafted by a committee chaired by Justice M.N. Venkatachaliah, former Chief Justice of India. The bill includes a democratic process for selecting party office-bearers as well as those given the ticket. It talks of limits on donations by individuals and corporations, suggests penalties for non-compliance and addresses the vexed question of how to deal with support groups that spend money that remains unaccounted for in the candidates’ election expenses.

It is legislation like this that the country needs. Much more than a Lokpal. It is only when political parties become answerable that clean candidates will emerge. Then alone might the use of public funds for private gain halt.

( A former civil servant, Shailaja Chandra is the Vice President of Initiatives for Change-Centre for Governance, a think tank that supports social reform. )

Keeping the Nation in the Dark

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.

 V. VENKATESAN

Death is entirely Discriminatory

Judge Jyotsna Yagnik’s invocation of human dignity while not awarding the death penalty in the Naroda-Patiya massacre case and the Supreme Court’s expression of helplessness while confirming the death penalty of Ajmal Kasab — sentenced in the 26/11 terror attack — go to the heart of the constitutional unviability of the death penalty. We would struggle to make any meaningful distinction in the culpability we attach to these two crimes but our collective response, in terms of the punishment they must receive, has been qualitatively different. While it will be debated whether it was appropriate for a trial judge to invoke concerns of human dignity at the sentencing stage, judge Yagnik’s judgment has also inadvertently demonstrated the inherent unfairness of the death penalty. One can’t help wonder about Kasab’s fate if he had appeared before judge Yagnik rather than judge M.L. Tahiliani. And it is precisely that unpredictability and inconsistency in the judicial administration of the death penalty that is at the heart of the principled objections to the death penalty.

DIFFERENT RESPONSES

There has been very little discussion on why principled arguments against the death penalty should not apply in Kasab’s case. Raju Ramachandran, the amicusin Kasab’s case, did a terrific job in attempting to get the Supreme Court to commute Kasab’s death sentence but there has been very little else. As a nation and a society we seem to have quietly accepted the death penalty for Kasab despite all the objections that have been raised about the death penalty in the past. Kasab’s case is a significant setback for the move towards complete abolition of the death penalty in India. It was, in many ways, the perfect case for the death penalty. A profoundly hurt and grieving society, the guilt of the accused established through damning photographs and videos, wounded nationalism and the possible involvement of state actors across the border all contributed towards making Kasab’s case a strong validation of the need for the death penalty. It is as though we are acknowledging that there will be moments in our life as a nation where we will need to satisfy our need for collective revenge. A need satisfied with the gloss of the rule of law.

On what basis, then, do we not demand the death penalty for those who masterminded and led the carnage in Naroda-Patiya? Maya Kodnani as an MLA was supposed to represent and protect the interests of those in her constituency and not lead a mob of genocidaires to torture, rape and kill many helpless Muslims. Despite that, our acceptability of the punishments handed down in the Kasab and the Naroda-Patiya cases has proceeded along very different lines. There will certainly be no sustained demand for the death penalty for Maya Kodnani and Babu Bajrangi but there is widespread satisfaction at the confirmation of death penalty for Kasab. That this qualitative difference in our perception of the two crimes has found reflection in the judicial administration of the death penalty is most unfortunate with the invocation of human dignity in one case and no meaningful engagement with it in another.

The issue is not whether the death penalty offends human dignity or not. As a polity, we have unfortunately decided that it does not. The primary issue is whether it is possible to develop a model of administering the death penalty that is consistent and non-arbitrary. Judge Yagnik chose not to impose the death penalty because of her commitment to the position that the human dignity of all convicts must be respected. Judge Tahiliani either does not subscribe to that view or believes that it is inappropriate for a trial judge to take such considerations into account. Either way, it exposes why the ‘rarest of the rare’ framework cannot work in a fair and consistent manner. It ultimately leaves significant scope for judicial discretion where all sorts of factors creep in, and has ensured that comparing the death penalty in India to a lottery would not be an exaggeration. An analysis of death penalty cases in India from 1950-2006 by Amnesty International confirms that administering the death penalty has been an arbitrary exercise. Essentially, it was observed that in many similar circumstances some convicts were awarded the death penalty and others were not.

In the pursuit of consistent application of the death penalty, is the solution then to completely remove judicial discretion? Should we develop a list of very specific crimes where the death penalty is automatically awarded? Before it was found to be unconstitutional, Section 303 of the Indian Penal Code provided that an individual who committed murder while serving a life sentence would be automatically sentenced to death. Emphasising the importance of individual sentencing, five judges of the Supreme Court in Mithu v. State of Punjab found the automatic sentencing to be arbitrary and unjust. The inability of the sentencing judges to take into consideration individual circumstances while deciding the sentence, the judges felt, would cause grave injustice to the accused.

Achieving a balance between judicial discretion and individualised sentencing has proved to be an impossible task. The Supreme Court has tried to address this by developing guidelines in cases like Bachan Singh and Santosh Bariyar Case  without much success. A damning indictment of such attempts has been the recent appeal by 14 eminent judges to the President to commute the death sentence of 13 convicts.

It is stated in the appeal that the Supreme Court itself has admitted to the wrongful administration of the death penalty in these 13 cases and that it would be a grave miscarriage of justice to not commute their sentence. It is time for the Supreme Court to recognise that it is attempting the impossible by trying to achieve a consistent application of the death penalty while maintaining the discretion of judges.

This debate between consistent application of the death penalty and individualised sentencing was at its peak in the U.S. Supreme Court in the 1970s. In Furman v. Georgia (1972), the U.S. Supreme Court raised constitutional concerns about the discriminatory and arbitrary use of the death penalty. After the judgment in Furman, many States responded with new guidelines for imposing the death penalty, including some mandatory death penalty schemes. While the attempt of the States to provide guidelines was upheld, the mandatory death penalty schemes were struck down in Gregg v. Georgia in 1976. However, the U.S. experience with ‘guided discretion’ since then has been disastrous and has been documented in great detail by the Steiker Report (2009) commissioned by the American Law Institute (ALI).

‘TINKERING WITH THE MACHINERY’

The ALI’s model framework for the administration of death penalty developed in 1962 provided the basis for the death penalty statutes that the U.S. Supreme Court found acceptable in Gregg. However, after the Steiker Report came to the conclusion that the death penalty continued to be administered in an arbitrary manner, the ALI deleted the death penalty provisions from its Model Penal Code in December 2009 with no proposal to introduce another framework. Justice Harry Blackmun’s judicial view on the death penalty while on the Supreme Court holds an important lesson for India’s judges in the Supreme Court. Appointed by President Nixon, he started out upholding the constitutionality of the death penalty including mandatory death sentences in the 1970s. Until a few months before his retirement in August 1994, Justice Blackmun was a supporter of the death penalty by upholding many attempts to achieve its non-arbitrary application. But in Callins v. Collins in February 1994, Justice Blackmun concluded that efforts of the U.S. Supreme Court over two decades since Furman to ensure fair and non-arbitrary application of the death penalty had proved to be futile. Finding the death penalty to be ‘fraught with arbitrariness, discrimination, caprice, and mistake’, Justice Blackmun revoked his support for the death penalty by declaring that he would no longer ‘tinker with the machinery of death’. The Indian Supreme Court must recognise the impossibility of what it is trying to achieve.

(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford.)

An Act of Constitutional Impropriety

The hurried and secretive hanging of Mohammad Ajmal Amir Kasab is both an administrative wrong and a constitutional impropriety. The Manmohan Singh government and the UPA chairerson, Sonia Gandhi, owe it to the nation and the whole world to explain why their Home Minister recommended the rejection of Kasab’s mercy petition by the President. To claim this secret execution as a ‘success’ is immature and shows up the constitutional ignorance of the government and its spokespersons. It leads to the inference that the Congress had strong political interests in Operation ‘X’ and wanted to use it to project itself as a courageous administration in preparation for the next electoral contest.

Incorrect

Why was Ajmal not informed about his Constitutional Right to Seek a Judicial Review of the rejection of his mercy petition? The non-disclosure of vital information that could have saved or extended his life is a serious wrong on the part of the government. It is incorrect to say all legal avenues were closed for Kasab after the rejection of his mercy petition. The judiciary has every power to review and even invalidate the President’s decision (taken on the basis of the Home Minister’s recommendation) if vitiated by bias or for any other wrongful reason.

Union Home Minister Sushil Kumar Shinde claimed that “ it is my nature that I maintain secrecy on such things. I am trained to be a policeman. ” It is unfortunate that Mr. Shinde does not know that he is not a policeman any more but a Cabinet Minister with the constitutional responsibility of leading the Home Ministry. Some sections of the media have quoted him as saying that even the Prime Minister and Ms Gandhi did not know in advance of Kasab’s execution. His statement that they would have heard the news of the execution only when television channels started reporting it implies he did not share this vital information with his Cabinet colleagues. Had he done so, he might have got better constitutional wisdom, or the Prime Minister might have ventured to seek legal opinion from the Attorney General of India, which is his power and duty under the Constitution. In fact, such a serious matter with international implications and constitutional complications should have been discussed by the Cabinet and also by the UPA, at least for political reasons.

The government’s secret operation prevented Kasab from exhausting all legal remedies available to him to escape or delay his execution. Article 21 that guarantees the Right to Life is equally applicable to foreign nationals — it is provided to ‘Persons’ and not to ‘Citizens’ as some fundamental rights are, such as Article 19. As per this right, the state cannot deprive life or personal liberty except according to established procedure of law. It is established in law that the President’s rejection of a mercy plea can be judicially reviewed to examine the material based on which the decision was made.

The Constitution provides the power of judicial review in order for courts to examine the reasons for the rejection of a mercy petition by the President. There are numerous cases in Indian history, where even after the rejection of a mercy petition, courts have exercised this power.

Kehar Singh’s case

In Kehar Singh v Union of India (AIR 1989 SC 653), the Supreme Court asserted that “the question as to the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.” Judicial review is part of the basic structure of the Constitution which even Parliament cannot interfere with. Kehar Singh was convicted for murder and conspiracy for the assassination of Indira Gandhi, the then Prime Minister of India, and was sentenced to death. After his appeal to the Supreme Court was dismissed, his son presented a petition before the President of India for grant of pardon to his father under Article 72 which deals with the President’s power to grant pardon, suspension, remittance and commuting of sentences in certain cases. The President rejected the petition. Kehar Singh wanted a personal hearing which was not accepted by the President on the ground of not being in conformity with the “well established practice in respect of consideration of mercy petitions”. The President, in his reply to a letter from counsel for Kehar Singh, said he could not go into the merits of a case that had been decided by the highest court of the land. True. The President does not have appellate powers over and above the Supreme Court. He can only go into areas not within the judiciary’s domain in deciding the grant of pardon. He cannot decide any question regarding guilt or quantum of sentencing.

After the rejection of the mercy petition, Kehar Singh’s son wanted the Delhi High Court to restrain the state from executing his father. His plea was rejected. He approached the Supreme Court. A Bench of five judges considered the question whether the President can scrutinise evidence while exercising pardoning power. The apex court took a liberal view and held that the President, in the exercise of the pardon power vested in him under Article 72, could “scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court in regard to guilt of and sentence imposed on the accused.”

However, as explained by the apex court, The President had no power to amend or modify or supersede the judicial record. The nature of the constitutional power exercised by the President in this regard is totally different from the judicial power. Without altering the judgment, the President could remove the stigma of guilt or remit the sentence imposed on him. Thus, the President can go into the merits, examine the record of evidence and determine whether a petitioner deserves mercy or not.

By giving Kehar Singh a hearing, the court also asserted that the function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power, is a matter for the court to decide. And the court decided that Kehar Singh’s petition seeking mercy be considered as still “pending before the President to be dealt with and disposed of afresh.” The President then again considered Kehar Singh’s petition for mercy and rejected it saying he did not deserve any mercy.

R.S. Pathak, then the Chief Justice of India, explained in the Kehar Singh case that “[p]ardoning power of President is [a]constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by context.” The CJ further explained the reason: “to any civilized society, there can be no attributes more important than life and personal liberty of its members … recourse is provided to the judicial organ for its protection … There is always a possibility of the fallibility of human judgment.” The Constitution has provided checks and balances for almost every conceivable situation. If the judiciary is fallible, the President has a chance of making a correction under Article 72. And if the President’s exercise of his power was questionable, the higher judiciary may ask him to reconsider.

This is how the three convicts sentenced to death in the Rajiv Gandhi assassination case, Santhan, Murugan, Perarivalan, secured a reprieve from the Madras High Court after the President dismissed their clemency petition in 2011. Similarly, in the same year, the Supreme Court admitted a plea by Devinder Pal Singh Bhullar’s wife. He had been sentenced to death for a 1993 terror attack in Delhi, and his petition for pardon had been rejected. The wife of another condemned prisoner, Mahendra Nath Das, also questioned the rejection of her husband’s mercy petition. Through the Supreme Court’s intervention, his hanging was suspended. Even in Dhananjoy Chatterjee’s case, the Calcutta High Court examined a petition seeking a review of President Abdul Kalam’s decision turning down his mercy plea. But it was ultimately rejected and he was executed in 2004.

Violation of rights

Thus, in Ajmal Kasab’s case, he should have been informed so that he could have exercised the last option of seeking a review of the basis of the President’s decision rejecting his mercy plea. The chance of examining whether the President’s action was vitiated by self-denial on an erroneous appreciation of the full amplitude of power has been lost because of Operation ‘X’. It is undoubtedly a violation of the rights of the convict. Even capital punishment retentionists advocate the exhaustion of all possibilities of survival, as a greater principle of precaution, before committing legal homicide. It is now the statutory duty of the Executive Head and also the Union Home Minister, under the Right to Information Act, 2005 to give reasons for their decision in killing Ajmal Kasab. Darkness and secrecy not only breed disease and corruption but also hide them.

( Madabhushi Sridhar is Professor and Coordinator, Center for Media Law and Public Policy, NALSAR University of Law, Hyderabad ) 

PM's message on National Press Day

"A free and fair media has been an essential pillar of our democracy. Since our struggle for freedom, media has been guiding social change, informing readers of their rights and contributing to the nation-building process by spreading awareness.

As a country, we believe in complete independence of the media from external control. It is true that sometimes irresponsible journalism can have serious consequences for social harmony and public order, which the public authorities have an obligation to maintain, but censorship is no answer. It is for the members of the Fourth Estate themselves to collectively ensure that objectivity is promoted and sensationalism is curbed. It is for them to introspect how best they can serve our country and society and advance their well being."

Dr. Manmohan Singh at 10th ASEAN-INDIA Summit |7th EAST-ASIA Summit in Nov. 2012

I sincerely thank you for your support for India-ASEAN partnership and your commitment to further strengthen and broaden it. I am also grateful for your valuable thoughts and suggestions on the future direction of our relationship. I also look forward to meeting you bilaterally here and in Delhi.

I also thank the ASEAN-India Eminent Persons Group for its report on India-ASEAN

Partnership. The Group’s recommendations provide valuable guidance for our deepening partnership, not only for mutual benefit, but also for peace and stability, growth and prosperity in the wider Asia-Pacific region.

I have no doubt that the conclusion of the Agreement on Trade in Services and Investments, together with our existing Agreement on Trade in Goods, will be a springboard for rapid expansion in our economic relations. The promising initiatives for cooperation in diverse sectors will add additional depth and range to our cooperation.

India’s large markets and rapid growth offer enormous opportunities for investments. We are taking a series of steps to further improve investment environment and accelerate growth. We look forward to increased ASEAN investments into India. At the same time, India will offer its own resources, expertise and experience to support growth and development in ASEAN countries, where such needs exist. I am pleased that Indian private sector has increased its presence in the region. I would also like to stress the importance of creating an environment that makes it easier for our professionals, entrepreneurs, students and tourists to travel between India and ASEAN countries.

Improved connectivity between India and ASEAN will be vital for deepening our economic integration as well as our strategic partnership. India and ASEAN have a shared interest in maritime security, counter-terrorism, anti-piracy and disaster management. We would like to see the emergence of an open, balanced, inclusive architecture that promotes peace, stability and prosperity in the Asia-Pacific Region.

This is a time of challenges in the region, but also of immense opportunities to shape its future. I am convinced that India and ASEAN can play an important and constructive role in building the regional architecture. Tomorrow, we will participate in the Seventh East Asia Summit and launch the RCEP negotiations.

This 10th ASEAN India Summit in Phnom Penh is a significant milestone in our partnership. There is great expectation for the future. I am confident that India and ASEAN countries will build a comprehensive strategic partnership. The Commemorative Summit provides us an occasion to define our vision for the future.

Excellencies, I look forward to receiving you in New Delhi for the Commemorative Summit. Once again, I would like to thank our Host Cambodia and Prime Minister Hun Sen for their very warm hospitality and for Cambodia’s role in helping us to scale new heights in the ASEAN-India Dialogue Partnership.

Thank you.