Pranab Mukherjee, in his tenure as president from 2012 to 2017, rejected 30 mercy petitions, including those of Ajmal Kasab, Yakub Memon and Afzal Guru. Pranab Mukherjee died on August 31 last year, at the age of 84.
Pranab Mukherjee's last book, The Presidential Years—2012-2017, was published on Wednesday. In it, Mukherjee writes he was thorough and read the original transcripts of the case. He wrote about the case he did give mercy: The Bara massacre. He admitted for the first time the procedure of informing the family of the date of the execution and facilitating the last meeting with the convicts was “perhaps... not fully adhered to" in the case of Guru and Memon.
THE WEEK reproduces an exclusive extract from The Presidential Years—2012-2017 on how Pranab Mukherjee handled mercy petitions.
Dealing with Mercy Petitions: Humane and Legal Aspects
As president, I dealt with several matters that were both complicated and taxing. But none caused me as much pain or anguish as the task of deciding on mercy petitions filed before me by convicts sentenced to death. The death sentences emanated from judgements of a trial court, later upheld by a High Court and finally by the Supreme Court. The trial court’s verdict would be based on facts as the judge saw it, and the High Court’s ruling would take the point of law into consideration. The apex court considered the case in an overall perspective before giving its verdict. Once these legal avenues are exhausted, the convict approaches the president for commutation of the capital punishment.
The president is not the punishing authority; the punishment has already been given by the courts. The president is the last resort. Thus, a humane aspect arises by the time the president comes into the picture. I was constantly aware while handling such cases that I was the last hope for the convict and that his life was in my hands. It was not an ordinary, routine government file that I was dealing with. I used to take more than a week to read the case history and the court judgements. But I took no more than three weeks in all to dispose off a file.
During my tenure as president, I rejected 30 mercy pleas involving nearly 40 convicts. My distinguished predecessors, A.P.J. Abdul Kalam and Pratibha Patil, had left a large number of cases pending. In fact, Kalam hardly disposed off any mercy pleas while Patil had decided on a few of them. The latter had granted clemency to 34 convicts and rejected just three petitions for mercy. Different presidents have different approaches.
I saw no point in keeping such files pending. The ones I dealt with dated as far back as the years 2000, 2004, 2005 and 2007. Either way, they had to be decided and I took it upon myself to discharge the responsibility. The law of the land had to be upheld. While I deliberated long and hard over the files of mercy pleas, once I had taken a decision—even of rejecting them—I let the issue rest. I may have had sleepless nights while considering my decision, but after the decision was made, the matter was closed as far as I was concerned. I did not follow the developments thereafter in detail, though I did keep in touch with the issue in the general sense. It is a futile exercise for a president to closely follow the trajectory after he has done his job. I cannot say for certain if my successors will follow my example of disposing of mercy petitions quickly; after all, I did not follow the example of my predecessors.
On its part, the Supreme Court itself had stayed the execution of convicts in a number of cases on the ground that these cases were pending for years. The court’s argument was that if the cases were nine years or older, the convicts given the death sentence had suffered all these years and their pain must be taken into consideration. Obviously, these cases never came to me for consideration. There were also cases where the government moved an appeal, and I told the government to get the court’s position through the Attorney General of India. Though the then Home Minister Sushil Kumar Shinde had forwarded a large number of cases, recommending death penalty, many of these were held back due to the court’s intervention.
Over the years, broad outlines for dealing with mercy petitions had evolved. However, three factors played on my mind. The first factor was that the case by nature must have involved ferocity and cruelty, and it must fall within the rarest of rare category. Two, the death sentence, given by the trial court, should have been upheld by the High Court and the Supreme Court without any dissenting voice—in other words, with unanimous verdicts. And three, the Government should have recommended the rejection of the petition. Once these conditions were met, the president ought to have no problems in setting aside the mercy petition. This is the position I took as president. Generally, once the president rejects a mercy plea, the matter does not return to the Supreme Court unless fresh issues of technicality or legality are introduced. In certain cases, appeals for mercy are made to the governor. I do not recollect any instance where I granted mercy after the governor had rejected the plea.
I would carefully read through the details, and even the court proceedings and verdicts, if they were in English. If they were in Hindi or a local language, then I would seek to understand the gist of the issue. In most cases, the judgements were in English. I remember a case that I read in detail, where a daughter (in collaboration with her husband) had killed her father and younger brothers over a property issue. The Sessions Court’s ruling was in Hindi.
Several mercy pleas, including that of Ajmal Kasab, one of the executioners of the 26/11 Mumbai massacre, were of high-profile nature and attracted a great deal of attention. I was shocked that a man of such tender age had adopted the path of largescale violence. He knew he would be hanged if caught, and yet he conducted the terror attack. People like him get misled because of the training and brainwashing they receive from their handlers. But none of these factors affected my decision-making, which was based purely on the facts of the terror attack. Here was a man who had been convicted by the trial court, and the conviction had been upheld by the High Court and the Supreme Court unanimously. He had crossed over from Pakistan, though Pakistan officially denied it and even disowned him as a Pakistani. His mother was in Pakistan but even she did not come forward to acknowledge her son’s identity. I told the then Pakistani president, Asif Ali Zardari, that Kasab could not have come from some other planet; all evidence pointed to him being a Pakistani. Could Zardari deny that Karachi was in Pakistan?
Kasab’s mercy plea had been kept pending by my predecessor, and thus there had been a delay in deciding on it. I was not aware of the time and date of his hanging beforehand. Files moved in New Delhi and the execution was carried out in Mumbai. It was not necessary for me to be kept informed. There are norms and procedures to be followed in such cases and I suppose they were adhered to. As far as I was concerned, my role ended once I rejected his mercy plea.
The other instances were that of Afzal Guru and Yakub Memon. In the former case, the BJP was in the Opposition then and demanded Afzal’s hanging without further delay. His mercy plea had not originally come to me. It had been placed before my predecessor who kept it pending, and thus there had been a delay in deciding on it. He had been convicted for his role in the 2001 attack on Parliament, and was hanged in February 2013 after I rejected his mercy plea. There was a great deal of hue and cry over the episode, with certain rights groups claiming that he had not been given adequate legal representation and that his execution was carried out in secrecy. Amnesty International had said the execution pointed to a ‘worrying and regressive trend towards executions shrouded in secrecy’. There were Leftists and some activists from Jawaharlal Nehru University (JNU) that campaigned against his death sentence.
The case itself went through many phases. He was arrested by a Special Cell of the Delhi Police in December 2001 and charged under various provisions of the Indian Penal Code (IPC) and later the Prevention of Terrorism Act, 2002 (POTA). The court-appointed lawyer for the accused later withdrew from the case, citing overload of work, and another lawyer was appointed. A few others, including former Delhi University professor, S.A.R. Geelani, were also arrested in connection with the case and tried.
Afzal made a confessional statement that was recorded by the appropriate authority of Delhi Police, but his lawyer subsequently alleged that the confession had been extracted from his client under duress. Afzal too disowned that confession, which was thereafter not taken by the court as evidence against him. Trial continued in a special court and concluded in six months following a day-to-day hearing. Afzal was given capital punishment, and so was Geelani. The matter went to the Delhi High Court, which upheld Afzal’s sentence but acquitted Geelani. The Supreme Court too upheld the death penalty, and later on dismissed a review petition filed by Afzal. The convicted terrorist then filed a mercy plea before me.
In November 2012, I had sent seven cases, including Afzal Guru’s, back to the Ministry of Home Affairs. I requested the then Home Minister, Sushil Kumar Shinde, to review the opinion of his predecessor P. Chidambaram. A couple of months later, the home minister made his final recommendation, seeking the death penalty. I then rejected the mercy plea and Afzal was hanged in February 2013.
Yakub Memon’s case was equally controversial. He was executed in July 2015. He had been convicted and given death sentence by a special Terrorist and Disruptive Activities (Prevention) Act court in 2007 in the 1993 Mumbai bomb blasts case. The court found that he was part of a criminal conspiracy to conduct terrorist attacks, disruptive activities and murder. Besides, he was charged with illegal possession of arms and ammunition. Memon’s appeal before the Supreme Court did not succeed, as the court confirmed the capital punishment he had been awarded, saying that he was the ‘mastermind’ and ‘driving force’ behind the terror bombings. The court also rejected a review plea he filed later. His mercy plea file came to me thereafter. Taking everything into consideration, I rejected his request in July 2015. My decision came in the wake of a detailed discussion I had with the then home minister, Rajnath Singh, and the then solicitor general, Ranjit Kumar. But the matter did not end there. Memon filed a writ with the Supreme Court, saying that the execution be stayed till his mercy plea with the governor was decided—the Maharashtra governor had been petitioned too. I was flooded with letters from certain eminent personalities and political leaders, requesting me to reconsider my decision.
The convicted person had also filed a writ petition before the apex court, this time challenging the order passed in a curative petition he had moved, claiming that the required quorum was not present, based on the interpretation of the rules of the Supreme Court. The two judges hearing the matter thereafter requested the CJI to urgently constitute a larger Bench and settle the matter. But Memon failed to get any relief even there. Finally, as a last resort, his lawyers filed a fresh plea for a 14day relief in the execution of the order on the ground that the president’s consideration of the mercy plea was too close to the execution date, thus giving an impression that the president may not have had sufficient time to apply his mind. The court met at midnight and in the early hours of the day, upheld the execution. He was hanged in Nagpur jail. Memon had claimed innocence all through the trial.
Unlike in Kasab’s case, where I had no doubts whatsoever, in the other two cases discussed above I was careful because of the various shades of opinion from both, those who wanted Memon and Afzal to be hanged and those who opposed the capital punishment. While I, as president, had applied my mind to all the cases of mercy pleas that were presented to me with recommendations of the government, the fact remains that the president normally goes by the recommendations of the Ministry of Home Affairs in such cases. If the government recommends the rejection of a mercy plea, then the president has to concur; if the government favours a mercy petition being accepted, the president does so. I believe that if the government of the day recommends that a mercy plea should be rejected, then I as president must not stand in the way.
However, there was one important case in which I did accept the mercy petition. It was in the infamous Bara massacre. In February 1992, armed men allegedly belonging to the Maoist Communist Centre—now named the Communist Party of India (Maoist)—brutally killed nearly three dozen villagers of the upper-caste Bhumihar community in Bara village in Gaya, Bihar. The victims were herded on the banks of a nearby canal, their hands tied and their throats slit. Some 36 people were accused of the crime, but charges were framed against 13. A Sessions Court convicted nine of them and gave death sentences to four in 2001. The capital punishment was confirmed by the Supreme Court in 2002. Their mercy pleas came to me for consideration.
The issue was a matter concerning Dalits and the massacre was some sort of retaliation on the atrocities committed on members of this community by other people. I recall having gone through the case in great detail, reading the court proceedings and the judgements. The Bara case had left a deep emotional impact on me, but I took the view—as I did in other cases—that my personal sentiments must not cloud the fact that in decisionmaking, the actions and functions of the state machinery should be taken into consideration. I granted mercy and commuted the death sentence of the four Bara massacre convicts because I found that the killers had acted in an exceptional frame of mind—even the court had made a similar observation. One of the convicts was very young, and courts usually take into consideration the age factor in deciding on capital punishment.
Normally, the established process is that, once the execution of a convict is decided upon, after all legal avenues have been exhausted by the convict and his family, then the convict’s relatives should be informed of the date and time of the execution. If family members—wife or children, for example—wish to visit the convict one last time, that too is facilitated. These formalities were not possible in Kasab’s case since nobody from Pakistan came forward with such requests. Our High Commission in Islamabad tried to contact the family members, but Pakistan’s attitude was non-cooperative. We also did not hear from Kasab’s mother. However, in the cases of Yakub Memon and Afzal Guru, perhaps these formalities were not fully adhered to.
It is possible that in certain cases, pressure can be brought upon by the media, etc., to change the course of justice. In the celebrated Nanavati case of the 1950s, for instance, public opinion was strongly and largely in favour of the accused, Commander K.M. Nanavati, then a serving officer of the Indian Navy, who had killed his wife’s lover. We had the jury system then, and the jury held him not guilty of culpable homicide, deciding instead that he had shot the victim in the heat of the moment—it was a crime of passion. But the Bombay High Court dismissed the jury’s arguments and ordered a retrial, in which the High Court found him guilty of culpable homicide. As a result of public support and strong backing from a section of the media, Nanavati was granted a presidential pardon after he had spent three years behind bars. Incidentally, the case saw the end of the jury system in India.
(Published with permission from Rupa Publications)
