Retributive
Violence By The State
By Prashant Bhushan
20 October, 2006
Outlook
The
fixing of the date for Mohammad Afzal's execution for his conviction
in the Parliament attack case has triggered a lively debate on the desirability
of the death penalty and whether Afzal's
sentence should be commuted by the President in the exercise of his
prerogative powers under Article 72 of the Constitution. The Supreme
Court's recent judgement quashing the exercise of this power by the
Governor of Andhra (who remitted the 10 year sentence to a Congress
party activist for murdering a political opponent), has added further
fuel to this fire. What then is the scope of the Presidential power
of pardon and when can it be judicially reviewed?
Article 72 provides that
"The President shall
have the power to grant pardons, reprieves, respites and remissions
of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence-
(a) In all cases where the
punishment or sentence is by a Court Martial;
(b) in all cases where the
punishment or sentence is for an offence against any law relating to
a matter to which the executive power of the Union extends;
(c) in all cases where the
sentence is a sentence of death."
This power has been examined
in a number of cases by the Supreme Court prior to the recent Andhra
judgment. It has been consistently held that;
(1) The President in the
exercise of this power is bound to act on the advice of the Cabinet;
(2) That the exercise of
this power is subject to judicial review;
(3) However, the scope of
the judicial review is limited to only examining whether there has been
application of mind by the government and whether the power has been
exercised on extraneous or
malafide considerations;
(4) Once it is found that
the there has been application of mind and there are no extraneous or
malafide considerations, the court will not interfere with the government's
prerogative power by substituting its own judgment over the government's.
So the crux of the issue
is: What are extraneous or malafide considerations? In this, the recent
Supreme Court judgement in Gowra Venkat Reddy's case essentially does
not depart from previous judgements. Considerations of caste, religion
or political loyalty would be clearly extraneous considerations. In
Venkat Reddy's case, the court came of the conclusion that the pardon
was granted for malafide considerations of political loyalty. However,
it has been held earlier that the government can examine the evidence
afresh and can exercise this power even on the ground that in its opinion
justice has not been done, or that the sentence is unduly harsh. But
what about a case where the government comes to the conclusion that
the execution of the sentence of death would create a strong sense of
alienation among a significant section of people or that it will encourage
and provoke several others to take to militancy? Would that be a relevant
consideration for granting clemency or commuting a death sentence?
These are the precise questions
which will arise in Mohammad Afzal's case when the government considers
the clemency plea on his behalf. The issues are: Did he get a fair trial
and, in particular, did he have a proper defence lawyer in the trial?
Is the death sentence unduly harsh, considering that he was not guilty
of any violent act? Will his execution seriously alienate people in
the Kashmir valley and push some towards militancy? Will the grant of
clemency to him encourage militancy and inflame feelings of people outside
the valley? These are all relevant considerations for the government.
It would have to decide by
taking all this into account.
Afzal in fact did not have
a proper defence lawyer. Since the lawyers that he had wanted refused
to appear on his behalf, he was provided with a novice by the trial
court who hardly cross examined any witness against Afzal. Given the
amount of fabrication of evidence and forced confessions obtained by
the police in this case, which has been found even by the Supreme Court,
it is not impossible that the evidence on which Afzal was convicted
may have been rubbished if he had a proper lawyer in the trial court.
Moreover, Afzal has not been convicted for any overt act of violence
but only for providing help to the terrorists. A court which normally
does not award death sentence in such cases awarded it "to satisfy
the collective conscience of the nation". The government can certainly
take the view that this is not appropriate or that this would alienate
and inflame the collective conscience of the people of Kashmir.
From the opinion polls and
the reactions of the people in the Valley and that of the rest of the
country, it is clear that there is a complete disconnect between the
valley and the rest of the country. The majority of the people outside
the valley have no idea of the level of alienation and anger against
India. Far from containing militancy, the presence of a 6,00,000 strong
security forces in the Valley is only fuelling the militancy. Hanging
Afzal is likely to further fuel the militancy, just as the hanging of
Maqbool Bhat did so earlier. These are all valid and germane considerations
for the government.
I however feel that the death
sentence should be commuted in such cases because the crimes of Afzal
or even the terrorists who attacked Parliament are not committed for
personal gain but because they nurse a strong sense of grievance against
the perceived injustice done to them by the Indian State. Their crime
was seen by them as a cause for which they were prepared to die. Such
people can not be deterred by hanging them. This is in fact likely to
create more such militants. One can deal with such people only by trying
to address their sense of grievance.
More fundamentally, however,
capital punishment is a form of retributive violence by the State which
only increases the culture of violence in any society. This culture
has been promoted by B and C grade Bollywood films which romanticize
violence and in particular retributive violence. That is why, on the
basis of deep sociological analysis, capital punishment, has been abolished
in 129 countries of the world. Violent crimes have decreased in the
Countries where it has been abolished. Even in the US, the incidence
of violent crimes is more in the States which have opted to continue
with the death penalty.
There are many reasons therefore
for commuting Afzal's death penalty. But given the charged opinions
on this issue and with the BJP threatening to make this a national issue,
I doubt that this government would have the courage to decide this matter
on rational and relevant considerations.
Prashant Bhushan
is a senior Supreme Court lawyer.
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