On September 18 this year, Ajmal Kasab wrote to the President from Arthur Road jail in Mumbai seeking clemency. The IG Prisons sent it to the Home department in Maharashtra. The fourth anniversary of the 26/11 attacks was two months away, and Mumbai seemed determined to close that chapter quickly. On October 1, Maharashtra Governor K. Sankarnarayanan recommended rejection of Kasab’s mercy plea to the Union Home ministry. A note that Kasab can be hanged on November 21 was quietly annexed to the note and swiftly dispatched to Delhi. Within a fortnight, Union Home minister Sushilkumar Shinde sent the recommendation to reject Kasab’s plea to President Pranab Mukherjee. As the Maharashtra government started secret preparations to execute Kasab, on November 5, President Mukherjee put his stamp on the decision.
The quick sequence of events is important. The decision on Kasab has become the second fastest one on a mercy petition. In 1996, then President Shankar Dayal Sharma decided to reject the mercy petition of Ravji, alias Ram Chandra, in six days. Chandra had murdered his entire family in 1993.
One reason for the swift execution of Ajmal Kasab was a warning from the Intelligence Bureau that if he was kept alive any longer, the country might once again face a situation like the hijacking of Flight IC-814 in December 1999 that forced the then NDA government to negotiate and release three Pakistani terrorists who had been held in Indian jails for a long time -- Mushtaq Ahmed Zargar, Ahmed Saeed Omar Sheikh and Maulana Masood Azhar -- on December 31, 1999. The apprehension quickly became a shared one among the country’s top security managers and ministers. Kasab’s execution thus almost became a certainty, and almost a state secret, with only a few in the PMO, a few central ministers and top officials of the ministries of Home and External Affairs and the Maharashtra government in the loop. Pakistan was informed on the eve of the execution by the Indian High Commission in Islamabad, which also dispatched a courier to inform Kasab’s family.
“We did not want the execution to become a media spectacle”, a top Home ministry official said. “Else, you would have had news stories on what Kasab ate for breakfast and so on. It had to be done quietly, and quickly.”
The cases of Kasab and Ravji are exceptions in a history, since Independence, of mercy petitions that have remained undecided for decades. Even the Supreme Court has expressed concern over delays in disposal of mercy petitions. Delays occur at various levels: bureaucratic delays, indecisiveness, legal hurdles and, many times, political compulsions. But the biggest factor is that there is no mandatory timeframe for the government within which it is required to take a decision.
Death row convicts -- presently 19 -- live in uncertainty as their mercy petitions shuttle between the President’s Secretariat and the Home ministry.
These delays sometimes lead to extraordinary situations. The government faced embarrassment this year when it came to light that one convict, Bandu Baburao Tidke, who was on death row for the rape and murder of a 16-year-old girl -- had died five years ago of HIV. In other cases, convicts have lost sanity while waiting for a decision. In others, victims or their kin have died before the convict faced gallows.
After Kasab’s execution, some cases have begun to draw more attention than others -- Rajiv Gandhi’s assasins, Afzal Guru, Devendra Pal Bhullar and Balwant Singh Rajoana. The last three have even taken political colours.
It is now over a decade since the Supreme Court in 2000 upheld the death sentences of Murugan, Santhan and Perarivalan for the assassination of Rajiv Gandhi. Even the President rejected their mercy petitions in 2011. But the Madras High Court stayed their execution, forcing the cases back into the Supreme Court.
Devendra Pal Bhullar is on death row for his involvement in a 1993 bomb blast in Delhi that killed nine people. The Supreme Court confirmed the death sentence in 2006, and the President rejected his mercy petition in 2011. Again, his case has gone back to the SC with a new appeal. Bhullar’s family has argued that delay in the disposal of his mercy petition has turned him into a mental wreck, and called it a violation of human rights. The SC bench hearing the case shot back with a question to Bhullar’s counsel about the human rights of the nine who died because of him. But the case is still pending.
The President also rejected the mercy petition of another death row convict, Mahendra Nath Das of Assam, in 2011, but his case, too, is back in the SC after he sought reprieve citing inordinate delay by the President’s office in deciding his mercy petition.
The case of Afzal Guru, who is on the death row for his role in the 2001 terrorist attack on Parliament, has become a political issue. The SC confirmed his death sentence as early as 2004, and after seven years of Congress and BJP accusing each other of playing vote bank politics over his case, the government recommended last year to the President that his mercy petition be rejected. But with the change of guard in the Home ministry in August this year, the President has sent the file back to the government for reconsideration.
While government sources say it is “normal practice”, it is curious that a change of minister should necessitate re-examination of a government decision taken months before.
Although Mr. Shinde has promised he will decide quickly, the fact of the matter is, admit government officials, a decision on Afzal Guru has been difficult because it is feared that his execution will have political and security repercussions in Jammu and Kashmir.
These same issues have also delayed the fate of Balwant Singh Rajoana, the killer of Punjab chief minister Beant Singh in 1995. Rajoana, a member of the Babbar Khalsa, was arrested in December 1995, sentenced to death in 2006, which was confirmed by the Punjab and Haryana High Court in October 2010. Earlier this year, the President concurred. But after a political uproar in Punjab, three days before he was to be executed, former President Pratibha Patil accepted a mercy petition filed on his behalf and the execution was stayed. He has spent 16 years in prison and, interestingly, did not appeal against the death sentence.
Rajoana’s case and those of the others show that Kasab’s execution is an exception, not the rule. It must also not be forgotten that only last year, former President Pratibha Patil granted clemency to over 30 prisoners on death row — the highest number for any President. What will happen to Afzal Guru and Rajoana and others on the death row is therefore still far from certain.