An act of constitutional impropriety

MADABHUSHI SRIDHAR

By not informing Ajmal Kasab of his right to seek a judicial review of the rejection of his mercy petition, the UPA government has committed a serious wrong

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 chairperson, 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)

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