OffStumped For All Things Right of Center, Bringing a Right of Centre Reality Check to Indian Politics, News Media Reporting and Opinion through Blogs and Podcasts.

The hanging of Mohammad Afzal Gooru convicted for his role in the 2001 terrorist attack on Parliament has been put off until a decision is reached on his mercy petition filed by his family. Keen to exhaust all legal possibilities, Parliament attack conspirator on death row, Mohammed Afzal, will be filing a curative petition in the Supreme Court soon. Afzal, whose hanging was scheduled for October 20, is biding his time as the mercy plea submitted by him to President APJ Abdul Kalam is being scrutinized by the Home Ministry. Meanwhile the political debate on clemency to Afzal rages on across the spectrum. To the Right the BJP is organizing a post card campaign to drum up support against his clemency petition. To the left there have been all kinds of arguments in favor of clemency ranging from why capital punishment is unethical to why the judicial process against him was flawed. What has generated the most controversy is the political demand from Jammu and Kashmir that hanging Afzal will put the clock back on the Kashmir peace process. 

While the most outrageous remarks came from Farooq Abdullah of the National Conference, you have dubious individuals like SAR Geelani to have been separatists like Yasin Malik all adding fuel to the fire. Perhaps the most insightful argument on the grounds of the peace process suffering comes from veteran journalist Prem Shankar Jha in the Hindustan Times who relates the seething anger in the Valley in a new generation of youth who are waiting to explode. Prem Shankar Jha’s argument is that hanging Afzal will make him martyr to this generation who will be lost forever from India. Prem Shankar Jha’s argues for magnanimity in favour of vindictiveness from the Government to win over this generation in Kashmir by giving clemency to Afzal. 

Not humanitarian, not claims of innocence or inadequate representation during the trial phase but Kashmir and the peace process, Offstumped examines the central question of whether Political Considerations specifically on the Kashmir Peace Process should be the basis for Clemency at all and what kind of precedent would that set ? 

While most of Europe and UK have moved away from Capital Punishment for some time now, the United States continues to be the only western democracy that actively applies the Capital Punishment. In fact the George W Bush as Texas Governor had a record number of death penalties executed. The U.S. is also known for a particularly politicial system of Presidential Pardon that has been a source of controversy on multiple occassions. Bill Clinton before remitting office in 2000 had quite a few Presidential Pardons that bordered on currying personal and political favors. President Gerald Ford had pardoned Nixon of his wrong doings. Interestingly enough in the U.S. unlike India the Presidential Pardon is not subject to judicial review. While this may gladden some in the Indian left who have been taking offence at the slightest judicial activism for all the wrong reasons, the facts on Presidential or Gubernatorial pardon of death sentences need to be appreciated before jumping to conclusions. 

As of Sept 2006 there have been 1076 executions in the United States since 1976. While 67% of capital punishments in the US are overturned the more interesting statistic is how many death sentences were commuted by the President and on what grounds. Offstumped’s analysis has revealed that for example that in total, President Clinton issued 456 executive clemency orders – 395 pardons and 61 commutations – between 1993 and January 20, 2001. The vast majority were issued in the last three years of his presidency – 176 (140 pardons, 36 commutations) were issued on his last day in office. However of the 61 commutations there was only one death sentence. That too because this was the first Federal death sentence since 1963 scheduled for execution since in the U.S. it is the states that carry out most of the death sentences. Since then however 3 death sentences have been carried out at the federal level. To date at the State level however there has been an exoneration and release of 123 men from death row in 25 states since 1973, including nearly 30 in the past three years. But this has been mostly on account of prosecutorial misconduct or lack of evidence on retrial. None have been on political grounds that the death sentence would be unpopular with a certain segment of the population. 

So even in a democracy like the United States where the power to pardon has a history of being applied purely on political considerations and is beyond the purview of judicial review, commuting of death sentences has been purely on humanitarian grounds in the case of mentally retarded or juveniles or has been on technical grounds or new DNA evidence surfacing. By arguing that the death sentence for Afzal in India must be commuted on political grounds, folks like Prem Shankar Jha and the political class in Kashmir are setting a dangerous precedent. 

What is that dangerous precedent ? 

It is a precedent that essentially reduces the Justice System from one that is about doing the “Right Thing“ to one that is about doing the “Popular Thing“. Especially given that the Supreme Court when to great lengths in its verdict on Afzal as pointed out by Offstumped in the past, it would be a shame if the Government were to commute the death sentence for populist reasons thus further lending credence to the myth that the Indian Constitution and its safekeepers are biased against Kashmir and thus in effect having the exact opposite effect. The other reason why the Kashmir peace process or the situation in the valley should not be a guiding factor for clemency is that by doing so the Government is abdicating its political responsibility and is taking the easy way out to win some brownie points. If the situation in the valley is so bad then why arent the political class, the Yasin Maliks and the Prem Shankar Jhas on the streets every day demanding that Manmohan Singh and Sonia Gandhi discharge their fundamental political duty and address the Kashmir issue and prevent these youth from slipping away further from the mainstream ? 

Offstumped Bottomline: Clemency to Afzal on prosecutorial misconduct or lack of evidence is one thing. Clemency to Afzal on humanitarian considerations of ill health or soundness of mental faculties is another thing. But Clemency to Afzal on the grounds that it is the most unpopular act in Jammu Kashmir is unacceptable. If the situation in the Valley is a powder keg then deal with it head on with political measurwss and demonstrate that you are doing all you can on the political front, for gods sake it is a Congress Government. Dont abdicate your political responsibility by taking the easy route of overriding the Judiciary to solve your political woes. Do not undermine the Judicial System to score political brownie points.  

If there are misguided youth in the valley who see Afzal as a victim, hero and martyr then focus on building confidence in the valley on the fairness of the Indian Constitution and Justice System, pardoning Afzal would do little to build confidence on the fairness of the Justice System. 

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