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Asian Tribune is published by E-LANKA MEDIA(PVT)Ltd. Vol. 20 No. 76

The clemency uproar

Sarla Handoo - Syndicate Features

Despite the possible deferment of the execution of Mohammad Afzal, convicted in the Parliament attack case, the din by supporters and the opponents of the death sentence is getting louder even as the execution (initially set for October 20) has been put off for the present. Both sides believe in the validity of the arguments they cite.

The observations of the Supreme Court in a different but similar case could not have come more timely. It set aside the then Andhra Pradesh Governor Sushil Kumar Shinde’s order reducing the sentence of a convict on the basis of a petition seeking pardon. The court observed that Governors order was "unsustainable" and the State Government should treat the petition of the convict as pending for the purpose of reconsideration. Mr Shinde had reduced the sentence of a Congress worker G. Venkata Reddy from 10 years to 3 and set him free as he had already served that period. Reddy was charged of having shot dead two persons of a rival party in 1995.

The Courts observations in the case are not only significant but have far reaching repercussions. It ruled that pardons and remissions "are not acts of grace" nor a matter of privilege. It held that the power had to be exercised in accordance with the rule of law and cannot be compromised on considerations of religion, caste or political expediency. To make things clear the bench said, "A pardon obtained by fraud or granted by mistake or granted for improper reason would invite judicial review." The president and the Governor, before granting such a pardon need to consider the effect it would have on the family of the victim.

The Apex court has thus left nothing in doubt. But is that going to convince the rival parties to put a stop to the on going debate on clemency for Afzal? That, unfortunately, does not seem to be the case, anyway.

Those who oppose death sentence come up with a number of reasons in support of their belief. Let us take these one by one. Perhaps the most important of these is that by executing Afzal we would be turning a criminal into a martyr and that it would provide a potent rallying point to the anti-national sentiments in Kashmir.

That may be true to an extent but does that mean that decision about executing death sentence for a person proved to have indulged in the heinous crime of attacking the very Parliament of India, should be taken on such considerations? If that happens, will it not be difficult to adhere to the rule of law? Will that logic result in over time pulling down the very edifice of democratic structure in the country? Well these are questions with no ready answers. In fact, no one in the thick of the campaign for Afzal is willing to face.

Another reason given is that death penalty does not necessarily mean reduction in violence and could perhaps lead to its escalation instead. They refer to the execution of Maqbool Bhat in this regard. Even if that point is granted where is the guarantee that by letting off hard core criminals peace would be restored. That at least is not the case in the present day world.

True, almost half of the world, eighty-five countries to be precise, have banned death sentence and are thus called the civilized part of the Globe. That, in fact, has to be the goal for every country in the long run. But it requires an atmosphere conducive for such a situation. Until then, one has to put up with what is necessary to let the rule of law prevail.

Howsoever one may admit that death penalty smells of revenge in a civilized society and butchers it further, one has to concede that a simplistic view on this crucial issue could be dangerous.

Taking a more legalistic view, some people have pointed out that since Afzal did not fire any shot himself, he can not be given a death sentence. They forget that one of the assassins of Indira Gandhi, Kehar Singh too did not pull any trigger and yet he faced the death penalty.

One ludicrous argument put forward is that the victim did not get a fair trial. A trail court awarded the sentence after proper investigations and two other courts have upheld the sentence. If that is not fair trial what else could be fair? Those who advance this argument forget that the same courts acquitted SAR Geelani, in the case. How did he get a fair trial?

Those on the other side of the fence point out that since Afzal has confessed the guilt and has not applied for clemency himself, there is no case for clemency.

The political noise that one hears from Kashmir and rest of the country seeking conversion of death penalty to Afzal into life imprisonment is interesting. It appears BJP is set against all other parties in this regard, though Congress is yet to make its stand clear. In Kashmir it is almost one voice in favour of clemency.

Even Chief Minister Ghulam Nabi Azad has joined the chorus with other parties like the PDP, the National Conference and the Left. Knowing their political compulsions it would be wrong to blame them but which way are they leading the country?

India has already got a ‘soft on terror’ image. That message has done a lot of damage, by emboldening the terrorists. There is no more scope for this except at the cost of national interest.

There is a strong case for changing life imprisonment to whole life imprisonment and not 14 years as at present. But who knows that incidents like the Kandahar hijacking will not be repeated leading to compulsive release of those in custody.

- Syndicate Features -

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