Need for constitutional amendment?

Mercy pleas as a ploy to delay justice?

By  Jagdeep Dhankhar?

There is need to focus on the powers of the President to grant pardon and mercy, more so in terror cases.  A  lot of politics over the same is being played. In the process our national interests are being ignored. This is contributing to India becoming a soft state.

Founding fathers of our Constitution gave the President  the power to pardon. Under Article 72 of our Constitution,  the President has the power to grant pardon and mercy. It has been mandated by the Supreme Court that petitions under Article 72 need to be disposed of expeditiously. The President  is bound by the advice of the Executive headed by the Prime Minister.
Recent events indicate  that even such a power has come to be massively abused   for political motivations.  Time has come to have a relook at this power so as to protect the human rights of over a billion people.

On December 13, 2001 five heavily armed persons practically stormed the Parliament House. The unprecedented incident bewildered the entire nation.  It sent shock waves across globe.  There was fierce gun battle for 30 minutes.  All five terrorists were killed  by the security forces. In the process eight security personnel and a gardener lost their lives.  Several were injured. 

One even shudders  to think as what would have happened if their sinister plan had succeeded. They had enough  ammunition sufficient to destroy  the  entire Parliament  building and  then  all inside would have been killed.  The attack was on the very temple of our democracy—a symbol of our sovereignty.

Every  year, in a ritualistic manner, the sacrifice of the security personnel who lost their lives  is remembered by the nation by way of a programme at the Parliament House. Is it enough ? No, as we have miserably failed to punish the guilty even several years  after Supreme Court verdict.

The investigation in this terror attack   unravelled  the conspiracy.  It led to the   conviction of Mohd Afzal Guru. He was awarded death sentence.

The Supreme Court dismissed the appeal of Mohd Afzal Guru on August 4, 2005 firmly holding that death sentence was the only appropriate sentence in this case.  The review petition was dismissed  on September 22, 2005. Curative  petition was also  dismissed by a four judge bench on January 12, 2007.Thus there was finality to the judicial process. The highest court in the country had affirmed death sentence for Afzal Guru. This judicial process took about five years.

Afzal Guru made  a mercy plea to the President of India. This  is pending for about  five years. The President has not been able to spare time to deal with his mercy plea. Nothing can be more unfortunate. We as a nation are a soft target for terror due to our own acts of commission and omission. As the  President  is bound by the advice of the Executive the main culprit thus in this case is the Union Executive. The delay of about five years for a matter that can be disposed in  a day is wholly on account of the Executive headed the Prime Minister. No one is sure as to when the mercy plea will be decided. Indeed, a low ebb in our accountability to our national interests. Would this ever happen in any other country? Which country would take that a long period to punish the culprit of such dastardly terror act.

The delay in deciding the mercy plea of such an accused is baffling to a nationalist mind. This is all the more alarming as in  public domain this demand has been repeatedly raised. Such a demand has fallen on the deaf ears of those responsible.   One wonders as to why this is not being done.  Answer is simple- appeasement politics.

Just a few months before attack on our Parliament House,  the Unites States, the mighty power ,came under heavy attack on September 11, 2001.  The twin towers of the World Trade  Centre in New York  were reduced to ground zero. About 5000 lives were lost. The  US  response, unlike ours,  was amazing. Within weeks  the US came to have a new law—the PATRIOT ACT that gave wider power to the agencies to deal with terror. The outcome is for all to see. US has suffered no other terror attack since then.

The mastermind of the attack on the US, Bin Laden,  was  tracked and killed  by the US forces in Pakistan, a foreign territory. As against this, we are utterly helpless in our own land. We are unable even to carry out Supreme Court verdict. The common man is aghast but those in power are cosy.

After the attack on the Parliament House  we have had series of terror attacks. We are put to shame when we compare our response with the US.  Under the pressure of vote politics and  minority appeasement   we did away with anti-terror laws like TADA or POTA.  A lopsided  and   perverted view of secularism !  We as a nation are unable to have effective anti-terror law because those in power  at the moment take it to be against their view of secularism.     Interest of the nation is not important as compared to their electoral prospects. How can an effective anti-terror law be ever construed to be anti-secular !

Framers of our Constitution would have never visualised that such horrifying politics would revolve around power to extend mercy under Article 72 of the Constitution. What a shame ! The President has taken about five years and is yet to decide this mercy plea. Already the President has taken more time than that was taken by the trial court,  the High Court and the Supreme Court taken together.

The entire nation witnessed the terror acts of Kasab, who was a part of  2008 terror attack on Mumbai. He  stands convicted by the trial court. Hopefully his matters in the High Court and Supreme Court would not take long. But can we bring him to justice in such a situation  ! His mercy plea would take any number of years.  The nation would pay crores for the  upkeep and  welfare  of the likes of Afzal Guru and Kasab  on account of wily politics.  Is it not a violation of human rights of over a billion people ?

In such a situation, it is imperative, to have in national interest, that the President decides these mercy petitions in a time bound frame.  And for this Article 72 needs to be suitably amended so that the power is exercised in a time bound manner. On this Human Rights Day let us resolve to have effective anti-terror law so as to protect the human rights of over a billion people.

(The writer is Senior Advocate, Supreme Court, President – Center for Human Rights and Justice)