A brief progress of the case, the theories of punishment, and clemency:  
The demand for executing the Supreme Court judgment awarding death sentence to Mohammed Afzal Guru, prime accused in the terrorist attack on Parliament House in 2001, has been a persistent one. 

It becomes shriller on the anniversary of the attack and events like the Gujarat elections. The Home Minister’s comparison of Afzal Guru’s case with that of Sarabjit Singh.

The reported statement of the convict himself preferring L.K. Advani in power so he will end the daily torture of waiting for the execution of the Supreme Court order. 

Now the latest twist in the case is the exposure by The Indian Express in a front-page story titled “PMO seeks details of mercy pleas, Dikshit says reply on Afzal at ‘appropriate’ time” (25 September 2008). Yet the case cannot be wished away by the Government, which is only entangling itself with differing pronouncements.

To refresh one’s memory of the case, Mohammed Afzal Guru, a Jaish-e-Mohammad activist, is on death row. He was convicted in the 2001 attack on the Indian Parliament, and the Supreme Court upheld his death sentence on 4 August 2005, and subsequently dismissed his review and curative petitions as well. Afzal petitioned the then President, Mr. A.P.J. Abdul Kalam for clemency in late 2006. 

The case for clemency for Afzal Guru has been marking time for many years now, doing the procedural labyrinth through the Delhi Government, Ministry of Home Affairs, Law Ministry, and collecting various reasons and excuses on the way.

 
The petition does not find mention in a Home Ministry document sent after a Right to Information request in reply to an RTI plea filed on 17 December 2007 by one Mr. Agrawal of Delhi. The pending list named 24 convicts, including those involved in the Rajiv Gandhi assassination - Murugan, Santhan and Arivu - but the name of Mohammad Afzal is missing.

 
It may be recalled that once, reacting to the delay in hanging Afzal Guru, Dr. Manmohan Singh reportedly remarked: “The Law is entitled to take it’s own course.” But the pertinent point is that the Law has taken it’s own course; the case is now taking the Political Course!

 
Let us briefly review various aspects of the theories of Punishment and Clemency. There are three main theories of Punishment:
A] Preventive. The classical example - Jack is punished not only for stealing sheep, but so that sheep may not be stolen. 
This view is generally accepted as a deterrent to Crime.

B] Retributive. An eye for an eye – “lex talionis” – is divinely sanctioned for Judaism, Christianity and Islam, the ‘People of the Book,’ who all acknowledge the Old Testament.
This view is considered inhuman in modern day society. In some cases, there is provision for the accused to be absolved of the crime if the aggrieved party forgives or is duly compensated. 

C] Reformative. The punishment is such as to reform the accused and make him a fine and law-abiding member of society.
Death penalty, solitary confinement or punishment (which rules out returning to normal life), do not serve the purpose.
It is from the last viewpoint that the concepts of abolition of death penalty and clemency arise.

In olden times, absolute rulers exercised this privilege arbitrarily or as per their fancy or to serve some personal gain [hostage, confession, etc]. Since the framing of the Indian Constitution, these privileges were exercised by the President and the Governors. The system ran unquestioned till the Supreme Court recently set aside a Governor’s judgment in pardoning a convict because he was a ‘good Congressman,’ and laid down some rational guidelines. Clemency has now to be granted within these parameters.

The Supreme Court has ruled that death penalty should be awarded in the ‘rarest of rare cases.’ But treason is the gravest of grave crimes. Unless, of course, one takes the view that the fight for freedom (i.e. sedition) is not treason (Musharraf’s excuse for supporting Kashmiri jihadis).

The case for Afzal Guru is argued on the following main points:-

1] It will create havoc in Kashmir (though Jammu and Ladakh may react differently). We are reminded that Justice Katju who awarded the death sentence to Maqbul Butt was murdered; later Butt’s hanging was the catalyst for insurgency in Kashmir. This argument is plausible; there is a similar dilemma in the north-east and with the Naxalites. 

2] Clemency against a harsh punishment and/or opposition to death penalty. Many European countries have abolished death penalty. 

3] Legalese
a) The trial was not fair: if not satisfied with the judgment, the accused can appeal for a re-trial.
But the same court had acquitted Geelani, another accused in the case.


b) Had Afzal got a ‘good’ lawyer, his case would have been well-presented and the judgment would have been different.
Quite plausible: with a ‘good lawyer’ a vehicle changes its classification; witnesses either turn hostile or become untraceable, or die during the long years of the trial.


It appears that the supporters of Afzal, including eminent individuals and lawyers, NGOs, and politicians, did not appreciate the gravity of the charges against him, or the likely outcome. Else, they would have ensured that Afzal got a really ‘good’ lawyer.

As for the inadequacy of the evidence against Afzal, are we to be the judges or can we leave that to the courts? Can we argue like some of the accused that they will go to the “People’s Court?”

On the legal side, a point has been made about the release of three persons in the Kandahar plane hijack case. The comparison is specious as that was a hostage swap authorised by the Cabinet under very extreme circumstances. 

That release cannot be allowed to be cited as a precedent to be followed. It may be recalled that Prime Minister Indira Gandhi refused to bow to demands for Butt’s release, even though the life of Ravinder Mhatre, an IFS officer in the UK, was at stake; he was subsequently killed by his captors. 

Those who were awarded death penalty for the murder of Gen. A.S. Vaidya (Army Chief during Operation Blue Star) were executed within weeks of the clemency plea being rejected. 

I would argue that the simultaneous pleas in the petition of unfair trial and demand for leniency do not go well together.

Hari Kak, IPS (retd.) is former Addl. Secretary, Cabinet Secretariat