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Operation ‘X’: An Administrative Wrong and Constitutional Impropriety360°ANALYSIS

Why the Indian government made a mistake in hanging terrorist Mohammad Ajmal Amir Kasab. 

The hurried hanging of Mohammad Ajmal Amir Kasab, which kept the media and the people of India in the dark, is both an administrative wrong and Constitutional impropriety. The Manhohan Singh Government and its policy maker UPA Chairperson Sonia Gandhi have a duty to explain to the nation and the world why their Home Minister has recommended Rashtrapathi to reject the mercy petition convict Ajmal Kasab? It is the administrative propriety that demands to give reasons for the decision of such serious nature to the people at large. Claiming that this secret execution is a ‘success’ is a manifestation of the immaturity and constitutional ignorance of the UPA II Government.  All  of this leads to an inference that the Congress party has strong political vested interests in hanging Kasab and wanted to use this quick action towards advancing election goals. 
The mute question is why convict Ajmal Kasab was not informed about the rejection of his mercy petition and about his constitutional right to seek judicial review of the recommendation of the Home Minister to the President. Although Ajmal Kasab was informed about the date of his execution on November 12th, non-disclosure of vital information, concerning his rights, which either would have saved or extended his life, remains a serious wrong on the part of the Government. It is also wrong to say that all the legal avenues to escape the gallows were closed for Kasab after rejection of his mercy petition. The judiciary has every power to review and even invalidate the recommendation of the Home Minister if it is vitiated by bias or any other wrongful reason. The Union Home Minister Mr. Sushil Kumar Shinde claimed: “it is my nature that I maintain secrecy on such things. I am trained to be a police man”. It is unfortunate that Sushil Kumar Shinde does not know that he is not a police man but a cabinet minister with the constitutional responsibility of leading the Home Ministry and has a duty of explaining to the nation the reasons for his secrecy and reasons for advising the President to reject.  It is also reported in some media that his cabinet colleagues including the Prime Minister and UPA Chairperson Sonia Gandhi did not have any hint of Kasab’s execution. The Home Minister’s statement on 21st November  that ‘they would have got to know from television when channels started reporting this morning’ confirms the position that he did not share this vital information with other colleagues. Had he informed key government officials, perhaps he would have received better Constitutional guidance or the Prime Minister might have ventured to seek a legal opinion from the Attorney General of India, which is his duty under the Constitution.  In fact, such a serious matter with international implications and constitutional complications should have been discussed in cabinet and also within the UPA, at least for political reasons. 
Because of this quick and secret exercise of the Union Government, Ajmal Kasab could not exhaust all his legal remedies to escape or defer the execution of capital punishment. Article 21 which guarantees the right to life is equally applicable to foreign nationals such as Ajmal Kasab, as that right is provided to ‘persons’ and not confined to ‘citizens’ like some fundamental rights (such as Article 19). As per this right the state cannot deprive the life or personal liberty except according to established procedure of law. Now it is established that the action of the President could be judicially reviewed to examine the material based on which the decision was made. 
The Constitution provides the power of judicial review in order for courts to examine the reasons for the rejection of a mercy petition by the President. There are numerous cases in Indian history, where even after the rejection of a mercy petition, courts have exercised this power:
The apex court in Kehar Singh (accused in Indira Gandhi Assassination case) v Union of India (AIR 1989 SC 653) has asserted that ‘the question as to the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review”.  It is needless to state that judicial review is part of the basic structure of the Constitution which even Parliament cannot interfere with. Kehar Singh was convicted for murder and conspiracy for the assassination of Indira Gandhi, the then Prime Minister of India, and was sentenced to death. After his appeal to Supreme Court was dismissed Kehar Singh’s son presented a petition before the President of India for grant of pardon to his father under Article 72, which deals with the power of the President to grant pardon suspension, remittance and commuting of sentences in certain cases.  The President rejected the petition. Kehar Singh wanted a personal hearing which was not accepted by the President on the ground of not being in conformity with the ‘well established practice in respect of consideration of mercy petitions”. The President, while answering the letter from the Counsel for Kehar Singh, said that he could not go into the merits of a case finally decided by the highest court of land. True. The President does not have appellate powers over and above the Supreme Court. He can only go into the areas which are not within the domain of the judiciary in deciding the grant of pardon, and the President cannot decide any question regarding guilt or quantum of sentencing.  
After rejection of the mercy petition, Kehar Singh’s son wanted the Delhi High Court to restrain state from executing his father. It was rejected. He approached the Supreme Court. A Bench of five judges considered the question whether the President can scrutinize evidence while exercising pardoning power. The apex court took a liberal view and held that the President in the exercise of the pardon power vested in him under Article 72 “to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court in regard to guilt of and sentence imposed on, the accused”. However, as explained by the apex court, the President has no power to amend or modify or supersede the judicial record. The nature of constitutional power exercised by the President in this regard is totally different from the judicial power. Without altering the judgment, the President could remove the stigma of guilt or remit the sentence imposed on him. Thus, the President can go into the merits, examine the record of evidence and determine whether a petitioner deserves mercy or not. Has Pranab Mukherjee done all of this in the case of Ajmal Kasab? 
In the Kehar Singh case the court asserted that the function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power, is a matter for the court to decide.  And the court decided that Kehar Singh’s petition seeking mercy to be considered as still ‘pending before the President to be dealt with and disposed of afresh’. Then the President again considered Kehar Singh’s petition for mercy and rejected it saying he does not deserve any mercy. 
Pathak, the then Chief Justice of India explained (in the Kehar Singh case), ‘Pardoning power of President is constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by context.’ The CJ further explained the reason, ‘to any civilized society, there can be no attributes more important than life and personal liberty of its members’… recourse is provided to the judicial organ for its protection… There is always possibility of the’ fallibility of human judgment’.  The Constitution has provided checks and balances in almost every aspect of significance. If the judiciary is fallible, the President has a chance of making corrections under Article 72. And if the President’s exercise is questioned, the higher judiciary can ask the head of the executive to reconsider a mercy petition.
The three convicts sentenced to death in the Rajiv Gandhi assassination case, Santhan, Murugan, Pararivalan, approached Madras High Court and secured reprieve for a few days before execution in 2011 after the President had dismissed their clemency petition.  Similarly, in the same year, the Supreme Court admitted the plea of the wife of Devinder Pal Singh Bhullar, who was sentenced to death for the 1993 terror attack in Delhi, after his petition for pardon was rejected.  The wife of another condemned prisoner Mahendra Nath Das (Assam) questioned the rejection of mercy to her husband and with the Supreme Court’s intervention his hanging was suspended.  Even in the case of Dhananjoy Chatterjee, the Calcutta High Court examined the petition to review the rejection by President Abdul Kalam, though it was ultimately rejected and he was executed in 2004. 
Thus, in the Ajmal Kasab case, he should have been informed about his right, so that he could exercise his last option of seeking a judicial review of the basis of the decision of President in rejecting his mercy petition. The chance of examining whether the President’s action was vitiated by political motivations or other reasons has been lost because of this Operation ‘X’.  It is undoubtedly a violation of human rights of the convict. Even the retentionists of capital punishment advocate for exhausting all possibilities of survival before committing legal homicide as a greater principle of precaution.  From the angle of administrative law, it is now the statutory duty of the Executive Head and also the Union Home Minister, under Right to Information Act, 2005 to give reasons for their decision in this hurried execution. Darkness and secrecy not only breeds disease and corruption but also hides them. 
The views expressed in this article are the author's own and do not necessarily reflect Fair Observer’s editorial policy.