By K.N. Bhat
Mar 24, 2012
The show of fairness through the ritual of re-examination of the whole material by the executive in considering mercy petitions is abhorrent
A Pakistani judicial commission was in India, ostensibly to gather information about the 26/11 attacks in Mumbai. At no time was there any doubt that the heinous plot, which left 166 innocent people dead, was conceived, scripted, directed and executed from Pakistani soil. The whole world knew it, and Pakistani administration ought to have known it well. However, Pakistan kept on denying any knowledge — leaves aside involvement — and even shed some crocodile tears. Pakistan, in fact, refused to bury the bodies of its citizens — the dead terrorists — and denied outright that the sole surviving terrorist, Ajmal Kasab, was its citizen. Yet it did not take long for the lies to get exposed.
After lots of international pressure, the Pakistan government began proceedings in one of their courts against unknown accused who had “allegedly” committed the crime in Mumbai and sought permission of the Government of India to send a commission to examine those concerned with the Indian part of the trial. The Indian government agreed to host the commission in the belief that India would be mistaken for an uncivilised country otherwise. This after the Indian government had handed over several dossiers containing facts about the investigation, which Pakistan refused to consider credible.
What can one expect the Pakistani commission to find at the end of its India trip except fault with everything that has been done in India, which it would have done in any case? We can trust them to start with the refusal of permission to cross-examine witnesses. They have already refused to give credence to the tonnes of material uncovered by the Mumbai trial — hence the commission’s insistence on cross-examining witnesses.
Any self-respecting government would have rejected permission to the Pakistani delegation that was only in search of ostensible basis of legitimacy for their mission’s foregone findings. And who knows, some among them might have come with the intent to find out how India could unearth so thoroughly the misdeeds in such a short time or how not to get caught next time. Tokenism in this case is not just a useless exercise; it may prove dangerous.
Unfortunately, it is not just the politicians who indulge in such stunts. Kasab was caught red-handed, literally so. His unmistakable figure was repeatedly seen on TV screens while the massacre was on. Because he was caught alive, an elaborate trial took place in as open a fashion as any civilised country can have. Kasab was convicted and sentenced to death. As required by our law, a two-judge bench of the Bombay high court confirmed the conviction and sentence. That should have been the end of the judicial process as prescribed by our books. But our Supreme Court resurrected the case.
The Supreme Court of course has the power to grant special leave to appeal if anyone were to point out any glaring error by the courts below. But no one had even suggested that. Yet the Supreme Court appointed a senior advocate as amicus curiae to represent Kasab and thereafter undertook a full-fledged re-examination of the material, obviously in search of errors, if any, by the courts below that could be corrected. Our judicial system need not be desperate to earn its place in history through such ostentatious means.
Our tendency to turn any and every situation into a political drama instead of doing what ought to be done is amply exemplified by the failure to execute death sentences after the Supreme Court had upheld them. The show of fairness through the ritual of re-examination of the whole material by the executive in the context of considering mercy petitions is abhorrent. In the case of Kehar Singh (1988), convicted of conspiracy in the plot to assassinate Indira Gandhi, the Supreme Court no doubt highlighted the power of the President to re-examine the verdict of death sentence on merits as well. This is as it should be, under a Constitution that regards the President as head of state. The President should be free to exercise his/her power unhampered by technicalities. But that does not mean that the babus of the home ministry can take unlimited time to wade through court records in the hope of finding a fault. The mercy petition of Devinder Pal Bhullar, the Khalistan movement activist and now a condemned prisoner, was in limbo for 11 years or so between North Block and the Rashtrapati Bhavan. A bench of the Supreme Court is hearing a set of writ petitions raising the issue of “abnormal delay” in deciding the mercy petitions.
Fault, if any, in the court verdicts and issues that the President is required to pay special attention to should be underscored by the mercy petitioner and the examination by the executive should be restricted to those.
Look at the actual and possible costs of these shows to the nation. The chargesheet recently filed by the police in the Delhi high court blast case — in which several innocent citizens were killed and many were seriously injured — says that the motive of the terrorists was “to secure justice” for Afzal Guru awaiting execution for his role in the December 2001 attack on Parliament. The cost of simply keeping Masood Azhar in detention for five years instead of swift trial and punishment despite loads of evidence against him was the sordid episode of hijacking of the Indian Airlines plane to Kandahar.
If Kasab fails to get acquittal from the Supreme Court, he too will move a mercy petition and after its rejection in the year 2020 or so, procrastination in the matter of execution is only to be expected. Meanwhile, Kasab should be saved from natural death lest the devotion of both India and Pakistan to tokenism should be disturbed.
The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India
Source: Asian Age, New Delhi