Mohammad Afzal, a Kashmiri, was awarded the death sentence in the 2001 Indian-Parliament - attack case. He is fortunate t lest in one respect. He was not killed in a fake encounter and buried in a nameless grave.
A.P.J. Abdul Kalam, then India’s president, received his mercy petition on October 4, 2006, and forwarded it to the Ministry of Home Affairs (MHA) for the latter’s advice. Since then, the Ministry has been sleeping over the petition. The MHA’s lethargic behaviour caricature norms of justice. Past precedents reflect that the MHA dealt with such maters in consultation with the State government concerned before submitting the petition back to the president with its advice.
The president is supposed to exercise his/her powers under Article 72 with the aid and advice of the Council of Ministers. The ministerial meeting will not take place as the MHA has not done its duty. The portents point to further delaqy as the MHA has not yet consulted the state government. Nor does it intend to do so anytime soon.
The inordinate delay by the MHA to submit Afzal’s petition to the Indian president with its advice reflects the ministry’s politicized approach to the matter. Such matters have to be dealt with in light of principles set forth in previous cases. Avid readers may read the convict’s petition in The Afzal Petition: A Quest for Justice by Promilla and Company, in association with Bibliophile South Asia and Champa: The Amiya and B.G. Rao Foundation or the Frontline magazine (Volume 26 - Issue 07 :: Mar. 28-Apr. 10, 2009).
The decided cases reflect the following objective guidelines underlying president’s decisions in the 12 decided These guidelines are
Whether fresh evidence is obtainable warranting a fresh inquiry?
Were there long delays in the investigation and the trial?
Whether personality of the convict or circumstances of the case justify grant of clemency? The personality and circumstances include a host of factors like age, sex, or mental deficiency. If the offence was committed under distress, provocation, or inebriation?
Has the appellate court expressed doubt on the reliability of evidence but decided on conviction notwithstanding?
Has the High Court, on appeal, reversed an acquittal or has it, on appeal, enhanced the sentence?
Is there any difference of opinion in the Bench of High-Court judges, necessitating reference to a third judge?
Was the evidence carefully considered in fixing responsibility, if it was a gang murder case?
A `yes’ to even one of the aforementioned grounds justifies, res judicata, grant of clemency as is evident from the decided cases (to quote only a few). In March 1998, the Indian president commuted the death sentences of S. Chalapathi Rao and G. Vijayavardhana Rao for their role in setting afire an Andhra-Pradesh-State transport bus near Chilakaluripet in Günter district on March 8, 1993. The incident caused death of 23 passengers.
Their mercy petitions were rejected by president Shankar Dayal Sharma in March 1997. Fresh petitions were filed before the president on their behalf, seeking a Supreme-Court stay order on their executions.
Their second mercy petition stated that the two covicted dalit youth had no intention of harming, let alone killing, any of the passengers of the bus. They only intended to commit robbery so as to overcome their acute poverty. They had no criminal antecedents in their police record and were very young. They committed the crime while being mentally and emotionally disturbed and tense owing to their poor family condition. Their confessional mercy petitions brought out their contrite. In violation of the International Covenant of Civil and Political Rights, they were denied legal aid for a period of one year after their arrest. Sharma’s successor, K.R. Narayanan, found these facts sufficient to grant clemency under the first ground.
The second case of commutation of the death sentence of Kheraj Ram from Rajasthan in 2006 also is in consonance with the guidelines. The High Court had acquitted Kheraj Ram but the Supreme Court restored the trial court’s conviction and death sentence. The MHA considered 11 years of investigation and trial in this case too long. It, therefore, recommended to the President to commute his sentence to life imprisonment.
Afzal’s case merits clemency on more than one ground. He was denied prompt and sufficient legal aid. His `counsel’ did not examine key witnesses. Key pieces of evidence were ignored in investigation. No details were ferreted out from the lap-top computer `recovered’ from his possession.
For one thing, his allegation that officers of the Special Task Force of Jammu and Kashmir used him and introduced him to one of the terrorists involved in the attack, whom he identified as Mohammad, could be considered as a sufficient clue to fresh evidence (a ground for clemency).
There are several other gnawing gaps in evidence against him. The prosecution did not investigate the fatuity of the charge that Afzal had gone to Srinagar on December 13, 2001, in the truck driven by another co-accused, Shaukat Hussain, and was arrested along with Shaukat Hussain in Srinagar on December 15, 2001. Afzal claims that the truck journey is a fabrication. If it had been true the prosecution should have produced toll receipts issued by Lakhanpur check post. At this check post, particulars of every vehicle, as also the names of the drivers and their driving licence-numbers, are entered. This lie alone discredits the `recoveries’ of a laptop and Rs.10 lakh from his possession in the truck.
He was denied legal assistance both at the investigation stage and at the trial stage. Judge of the trial court rejected his application (July 8, 2002) that he was not satisfied with the amicus curiae. The court did not appoint any of the four lawyers he had requested to be appointed his pleader.
He never signed any vakalatnama in favour of Bansal, the amicus curiae. His `counsel’ himself also wanted to withdraw from the case. But the judge did not discharge him, and he had to stay aboard to assist the court. His advocate did not cross-examine Prosecution Witness (PW) 66 (Inspector Mohan Chand Sharma) at all, even though he was one of the most important witness. Shopkeepers were coerced into identifying him as `the terrorist’. The forced `advocate’ cross-examined only 22 of the 80 prosecution. The contents of Afzal’s petition make it clear that key pieces of evidence were ignored during the investigation and his inability to cross-examine the prosecution witnesses effectively was a crucial factor in the success of the prosecution.
Justice delayed is justice denied. The media should bring into limelight the imminent murder of justice in India. Let us hope that the media does not wake up to make an outcry when it is too late.
A.P.J. Abdul Kalam, then India’s president, received his mercy petition on October 4, 2006, and forwarded it to the Ministry of Home Affairs (MHA) for the latter’s advice. Since then, the Ministry has been sleeping over the petition. The MHA’s lethargic behaviour caricature norms of justice. Past precedents reflect that the MHA dealt with such maters in consultation with the State government concerned before submitting the petition back to the president with its advice.
The president is supposed to exercise his/her powers under Article 72 with the aid and advice of the Council of Ministers. The ministerial meeting will not take place as the MHA has not done its duty. The portents point to further delaqy as the MHA has not yet consulted the state government. Nor does it intend to do so anytime soon.
The inordinate delay by the MHA to submit Afzal’s petition to the Indian president with its advice reflects the ministry’s politicized approach to the matter. Such matters have to be dealt with in light of principles set forth in previous cases. Avid readers may read the convict’s petition in The Afzal Petition: A Quest for Justice by Promilla and Company, in association with Bibliophile South Asia and Champa: The Amiya and B.G. Rao Foundation or the Frontline magazine (Volume 26 - Issue 07 :: Mar. 28-Apr. 10, 2009).
The decided cases reflect the following objective guidelines underlying president’s decisions in the 12 decided These guidelines are
Whether fresh evidence is obtainable warranting a fresh inquiry?
Were there long delays in the investigation and the trial?
Whether personality of the convict or circumstances of the case justify grant of clemency? The personality and circumstances include a host of factors like age, sex, or mental deficiency. If the offence was committed under distress, provocation, or inebriation?
Has the appellate court expressed doubt on the reliability of evidence but decided on conviction notwithstanding?
Has the High Court, on appeal, reversed an acquittal or has it, on appeal, enhanced the sentence?
Is there any difference of opinion in the Bench of High-Court judges, necessitating reference to a third judge?
Was the evidence carefully considered in fixing responsibility, if it was a gang murder case?
A `yes’ to even one of the aforementioned grounds justifies, res judicata, grant of clemency as is evident from the decided cases (to quote only a few). In March 1998, the Indian president commuted the death sentences of S. Chalapathi Rao and G. Vijayavardhana Rao for their role in setting afire an Andhra-Pradesh-State transport bus near Chilakaluripet in Günter district on March 8, 1993. The incident caused death of 23 passengers.
Their mercy petitions were rejected by president Shankar Dayal Sharma in March 1997. Fresh petitions were filed before the president on their behalf, seeking a Supreme-Court stay order on their executions.
Their second mercy petition stated that the two covicted dalit youth had no intention of harming, let alone killing, any of the passengers of the bus. They only intended to commit robbery so as to overcome their acute poverty. They had no criminal antecedents in their police record and were very young. They committed the crime while being mentally and emotionally disturbed and tense owing to their poor family condition. Their confessional mercy petitions brought out their contrite. In violation of the International Covenant of Civil and Political Rights, they were denied legal aid for a period of one year after their arrest. Sharma’s successor, K.R. Narayanan, found these facts sufficient to grant clemency under the first ground.
The second case of commutation of the death sentence of Kheraj Ram from Rajasthan in 2006 also is in consonance with the guidelines. The High Court had acquitted Kheraj Ram but the Supreme Court restored the trial court’s conviction and death sentence. The MHA considered 11 years of investigation and trial in this case too long. It, therefore, recommended to the President to commute his sentence to life imprisonment.
Afzal’s case merits clemency on more than one ground. He was denied prompt and sufficient legal aid. His `counsel’ did not examine key witnesses. Key pieces of evidence were ignored in investigation. No details were ferreted out from the lap-top computer `recovered’ from his possession.
For one thing, his allegation that officers of the Special Task Force of Jammu and Kashmir used him and introduced him to one of the terrorists involved in the attack, whom he identified as Mohammad, could be considered as a sufficient clue to fresh evidence (a ground for clemency).
There are several other gnawing gaps in evidence against him. The prosecution did not investigate the fatuity of the charge that Afzal had gone to Srinagar on December 13, 2001, in the truck driven by another co-accused, Shaukat Hussain, and was arrested along with Shaukat Hussain in Srinagar on December 15, 2001. Afzal claims that the truck journey is a fabrication. If it had been true the prosecution should have produced toll receipts issued by Lakhanpur check post. At this check post, particulars of every vehicle, as also the names of the drivers and their driving licence-numbers, are entered. This lie alone discredits the `recoveries’ of a laptop and Rs.10 lakh from his possession in the truck.
He was denied legal assistance both at the investigation stage and at the trial stage. Judge of the trial court rejected his application (July 8, 2002) that he was not satisfied with the amicus curiae. The court did not appoint any of the four lawyers he had requested to be appointed his pleader.
He never signed any vakalatnama in favour of Bansal, the amicus curiae. His `counsel’ himself also wanted to withdraw from the case. But the judge did not discharge him, and he had to stay aboard to assist the court. His advocate did not cross-examine Prosecution Witness (PW) 66 (Inspector Mohan Chand Sharma) at all, even though he was one of the most important witness. Shopkeepers were coerced into identifying him as `the terrorist’. The forced `advocate’ cross-examined only 22 of the 80 prosecution. The contents of Afzal’s petition make it clear that key pieces of evidence were ignored during the investigation and his inability to cross-examine the prosecution witnesses effectively was a crucial factor in the success of the prosecution.
Justice delayed is justice denied. The media should bring into limelight the imminent murder of justice in India. Let us hope that the media does not wake up to make an outcry when it is too late.
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