Afzal Guru’s Hanging and President’s Dilemma

Ever since the announcement of the date of Afzal Guru’s hanging, a nationwide debate has started on whether or not clemency should be granted to Afzal Guru. Afzal Guru was convicted by a Sessions Court and sentenced to death. The High Court confirmed the conviction and upheld the death sentence. The Supreme Court too agreed with the courts below. The offence he is charged with is not a murder committed in the heat of passion; it is not a simple murder. It is not even a dacoity which tempts a man to be rich overnight. It is much more than that. It is an assault not only on the life of some eight people but a gruesome attack on an institution which represents the entire Indian nation.

Section 302 of Indian Penal Code gives an option to the court to impose death sentence or life imprisonment on convictions for an offence of murder. For a long time in the history of the Indian Penal Code, a choice between death sentence and life imprisonment was considered a matter of the Trial Court’s discretion. However, the Supreme Court, when confronted with the issue, finally settled the same by laying down the law that the penalty of death should be awarded only in the rarest of rare cases.

The Constitution confers on the President the power to grant pardon (Article 72), reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. A similar power is conferred on the Governor of a State. (Article 161) However, in both the cases the power is exercisable not on individual discretion but on the advice of the Council of Ministers.

In the case of Afzal Guru, thirteen people were killed in the attack on Parliament and they included five militants. But the nature of the offence was so gruesome that the number of casualties could have been in hundreds if there was no quick action on the part of the security forces. It was this prosecution story which was found to be correct at least as regards Afzal’s case. The Trial Court, High Court and the Supreme Court are all unanimous that it fell within the purview the rarest of rare cases warranting the death sentence. The trial of the case took a few years too allowing the legal procedure to take its course and sufficient time and opportunity to the accused to appropriately defend himself

Political Pressure

The announcement of the date of Afzal’s hanging has let to large scale demonstrations in the Valley in the form of strikes, protests etc. Even the political parties have been drawn into the controversy. The case has unveiled a characteristic facet of Kashmir politics where the lines between political propriety and absurdity have blurred completely. The demand for clemency has come not only from the PDP, Hurriyat and other separatist groups but also from the serving Chief Minister, Gulam Nabi Azad. Former Chief Minsiter Farooq Abdullah went to the extent of making a veiled threat that Kashmir would be set on fire and the country will be divided between Hindus and Muslims. He even predicted that Guru’s hanging will threaten the life of the judges who tried him and upheld the death sentence.

These demands of the politicians are not explainable by any hypothesis except that they are aimed at political gains. It is not known what advice would be tendered by the Home Ministry which has been sought by the President. But keeping in view the background and the manner in which the offence was committed, the Ministry is not likely to support the demand for clemency. In a recent judgment, the Division Bench of the Supreme Court, in a matter arising from Andhra Pradesh where the then Governor Sushilkumar Shinde had reduced the sentence of a Congressman from ten to five years, found fault with such reduction of sentence and held that the power available to the Governor and President would not be exercised for political or any other arbitrary reason and the use of such a power is subject to judicial review. This judgment removes all doubts about the nature of the power of pardon, reprieve and respite vested in the President and Governor under the Constitution.

Hard Options

The options before the Central Government and President of India are hard. Any clemency shown to the accused would have the effect of encouraging militancy in the State on the one hand and on the other hand not obliging the political parties of the State may not be easy. It would also at the same time demonstrate the Government of India’s inability to face the criticism of the country. This is perhaps the first case in which politics and political pressure have crept in and these, as always, promote animosities not for any valid reason but for petty political gains.

Democracy, it is said, sometimes militates against rational decision-making as mass reactions and opinions can be easily stage-managed. In some cases, however, it is more important for a government to be effective rather than win legitimacy through popular allegiance. Quite often it is the former that leads to popular gains. The Indian state has for long earned the reputation of being a soft state. Let it not be known as a supine democracy in the world. An American news-magazine once wrote that the Indian Government in the last couple of decades has been practising adhocism of a culpable kind, always treating the symptoms while the roots of the problem continue to fester.

Fortunately or unfortunately the government policy on Kashmir has been adhocist and incoherent. The policy has hardly stood India in good stead. So is the position regarding the dialogue between India and Pakistan pending for so long now. Commitments made by Pakistan to deal with militancy have been belied. The slogan of friendship between India and Pakistan at Havana by developing a common mechanism appears to be bereft of any meaning. The Government of India needs to re-examine its policies and see to what extent it can advance in its resolve to deal with the problems in Kashmir and terrorism in particular.