The Quality of Mercy


by B.G. Verghese 
The past week has seen witnessed impassioned appeals that the death sentences passed against the LTTE killers of Rajiv Gandhi, Afzal Guru, sentenced for his role in the attack on Parliament House in December 2001, and the Khalistan Liberation Font terrorist, Devinder Pal Singh Bhullar, for bombing a Indian Youth Congress gathering in Delhi in 1993, be commuted from life to death sentences.  The argument made out is that they have been on death row for unconscionably long without disposal of their mercy petitions and thereby made to die a thousand agonising deaths.    

This is a valid point and there is absolutely no reason why these matters have been kept pending for so very long across different regimes. Article 72 of the Constitution stipulates no deadline by when the Home Ministry/Government should make its recommendation to the President. If decisions have not been taken it is because governments have sought to trade stern duty by pandering to political constituencies. As long as the Constitution provides for the death penalty (which the Supreme Court awards in “the rarest of rare cases”), unless there has been a miscarriage of justice, or new evidence or other compelling circumstances, – such as Nalini, one of the Rajiv assassination accused, giving birth to a child in jail – it should not take more than a few weeks for the decision to be announced. Most often, delay itself invites political play and the building up of pressure from interested quarters, national or international, to impede decision-making. This is the trap into which governments have repeatedly fallen across parties and have only themselves to blame.

As long as capital punishment remains on the Indian statute it should be laid down that unless a mercy petition is decided within four weeks of the final sentence, the Supreme Court’s verdict will stand and any death sentence executed within a week thereafter.

However, it is passionately argued, that most countries have abolished the death penalty and it is only befitting that as a democratic, liberal state, India should follow suit. This is not without merit – though terror perhaps stands on a somewhat different footing; but as long as the law is the law, it must be observed and there should be no shifting of goalposts.  If capital punishment is abolished tomorrow than let all future heinous crimes be heard and decided in that context. Fiddling with due process can open the door to other ills.

It is argued that the execution of Iqbal Butt, the killer of the Indian diplomat, Mhatre in Birmingham, years ago, stimulated resentment and anger among anti-national and jihadi elements in J&K and Pakistan and that the execution of Afzal Guru and Bhullar could trigger similar reactions. These arguments must be dismissed out of hand as caving in to terrorist blackmail. For the same reason, any mercy petition by Ajmal Kasab should not be given consideration on such pusillanimous grounds. In each and every case, the decision must rest on merit. The Tamil Nadu Assembly recently adopted a resolution calling for commutation of the death sentences imposed on the Rajiv killers. The Punjab Assembly is contemplating passing a similar resolution in regard to Bhullar. And now a J&K MLA has introduced a similar motion for clemency for Afzal Guru “in keeping with the aspirations of the people”.

This of course is undiluted nonsense and confuses legitimate debate on the merits of capital punishment with playing politics.  

Anna Hazare’s fast has also triggered debate on the legitimacy of that form of protest in a day and age – unlike the Gandhian  era – when the country has a democratic Constitution,  a representative and popularly elected Parliament to which the Executive is duly accountable, a judiciary subject to due process and a free and powerful media.  A two or three day self-purificatory fast is one thing but a fast unto death (howsoever named) is tantamount to suicide which is a cognisable offence under law. Such fasts amount blackmail as the coercive element lies in the threat of public disorder and violence in case of death.    

It is for this reason that Irom Sharmila’s 11-year fast in Imphal, though greatly moving and distressing, has resulted in her being restrained and forced-fed.  This writer too believes that the Armed Forces Special Powers Act, should be repealed in its present form and any essential provisions should be incorporated in other legislation, as recommended by the Jeevan Reddy Commission. Irom Sharmila has appealed to Anna Hazare to endorse her demand and even to visit Imphal. A visit might be problematic as it could confuse matters by conflating issues.

Anna plans to watch the process and content of Parliament’s enactment of a Lok Pal Bill on the basis of the recommendations of the Standing Committee after a full examination of all and everybody s demands and suggestions. The unanimous Parliamentary resolution adopted on August 27 said no more than this despite much posturing and divergent interpretations by sections of “civil society” and the media. However, Anna now says he will resume an indefinite fast should the outcome not be to his satisfaction. This could be no more than another case of careless reporting. There can be no supplanting of democratic consensus by authoritarian diktat and blackmail. One trusts Team Anna will not be so foolhardy as to tread this path.

As in the case of corruption, numerous civil society groups and government agencies are dealing with many other burning issue such as electoral reform, political party reform,  police reforms and so forth all of which have a bearing on good governance. The Aadhar (UID) programme will itself vastly strengthen the government’s ability to improve governance by more accurately targeting those who should benefit from various rights based programmes and replacing money transactions with e-banking payments. None should think they can muscle in at any point and at any time and seek to appropriate such vital national programmes on the basis a narrow agenda set by a small, self-appointed coterie in the name of “civil society”. 

While the law must take its course every time, the Government and Parliament too would be advised not to appear vindictive or stand unduly on privilege. At the same time, Anna cannot bristle over the fact that tax notices have been served on Kejriwal (and Baba Ramdev). Let the matter be settled expeditiously one way or the others. No one is above the law, even if only a technical offender. Anna is categorical that Kejriwal is innocent. Maybe But in defending Kejriwal he has labelled government servants liars and wily fraudsters and the Home Minister, Chidambaram as a “mischievous man” and habitual liar. This is not the first time Anna and his team have used such abusive language.   

The media too must examine its role as part “farce multiplier” through what was in some ways embedded and biased reportage and commentary. The Independent Broadcast Regulatory Authority under Justice J.S. Verma should look into this matter de novo and Government would do well to prepare a draft Bill for regulating the broadcast media, and refashioning the Press Council, in the interests of maintaining the health and vigour of what is today the most powerful Estate in the land.
www.bgverghese. com


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