Why do I think that the stand of the Congress on the Afzal death sentence is the only logical, correct and sensible one? Not because I happen to be spokesperson of that party and have a tunnel vision on that count. Also not because I had something to do with the formulation of that stand.
What is our stand? It is that clemency, pardon, reprieve and the entire gamut of post-conviction processes available to a convict have been a part of our Constitution from its inception. Specific provisions provide for it. More importantly, for over 55 years, these provisions have been applied and operationalised in hundreds of cases. Some persons have benefited through the application of these principles, others have not.
The process — by now well established, constitutionally and legally — involves the central government, the Home Ministry in particular, the prosecuting agency of the relevant state or Union Territory, and the police force concerned. Last, but certainly not the least, it involves the President of India. Over the years, practice, procedure and convention have led to an established cycle of decision-making in this field, and no political party, individual, NGO or anyone else has any role to play in it. It is only up to the central government and the President to decide.
Even after a decision, yet another avenue is provided by way of further legal challenge to the decision. However, case law holds that the scope of judicial review in respect of issues of clemency and the like is extremely circumscribed. In this thicket, for all and sundry to offer gratuitous advice is akin to letting loose a political bull into a constitutional china shop.
Hence, the Congress stand in favour of a hands-off policy. A demand for no right to even claim clemency for Afzal — made by the BJP and many other sections of the parivar — is the same as seeking compulsory hanging. It means that as far as Afzal is concerned, Article 72 of the Constitution that provides for clemency stands repealed. It means that even the possibility of the central government and the President considering his plea stands excluded, irrespective of the merits of his plea. Such a stand has nothing except subjective ipse dixit to commend it.
Equally, the stand that Afzal must necessarily and as a matter of inalienable right be granted clemency — made by almost all sections of the political spectrum in J&K, including the Congress government in that state — is untenable because it eliminates all discretion and application of the guidelines regarding clemency. It imposes a result, irrespective of the merit or otherwise of Afzal’s case. That claim cannot be justified on the basis of local J&K sentiment because the sentiment in India may well be radically different. In any event, such ‘public opinion’ and ‘sentiment’ is notoriously fickle and non-measurable — like the weather it changes daily and even momentarily. The consequences of operating our clemency provisions at the mercy (no pun intended) of such subjective indecipherables can be disastrous.
As Aristotle said, each extreme is a vice; virtue lies in the middle. The Congress middle path is thus clearly the most virtuous. The fact that the party took it and has stuck to it, despite discordant voices at the state level, is something to be appreciated and applauded. It reflects an adherence to the rule of law and to constitutional principles and practices.
Several peripheral issues may now be commented upon. Clemency is being used mainly in the sense of commutation of death sentence to life imprisonment. It is not intended to suggest pardon. The latter upsets the conviction itself and removes the stigma of guilt, whereas the former is only to do with the sentence, not the guilt itself.
Second, the demand by several persons opposed to the death penalty in principle for commutation of Afzal’s sentence is not germane to the debate. The death penalty is a part of Indian law, and unless it is altered by legal or constitutional amendment, it is a given which every judge of every Indian court is bound to apply, whenever the relevant legal tests are fulfilled. Personally, I endorse the present Indian legal position as the best of both worlds. Death penalty exists, but only to be applied in the rarest of rare cases.
Third, the common argument of those who support Afzal relates to the alleged infirmities in the trial, to alleged errors in the judgments of the courts and to other merits of the case. It has been well established for decades that the clemency provisions have nothing whatsoever to do with the merits of the case. Article 72 creates no appeal from the apex court to another adjudicatory body above the apex court. The central government does not and cannot scrutinise the legal errors of the apex court or other courts below. It is entirely possible for clemency to be granted despite the absence of any legal error on grounds of disease or family circumstances. Conversely, it is entirely possible for clemency to be denied despite the existence of several egregious legal errors, on the ground that there are no special equitable circumstances justifying clemency.
Abhishek Singhvi is a Senior Advocate, Supreme Court of India, and a Congress MP email@example.com