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 )
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