Less than a week after after he demitted office as Chairman of the Law Commission of India after submitting a landmark report recommending abolition of death penalty except in cases of terror attacks, former Delhi High Court Chief Justice Ajit Prakash Shah Friday said the sudden and “secretive” hanging of Parliament attack convict Afzal Guru was a mistake by the government.
“I don’t understand why it had to be done so secretly and so suddenly. In my opinion, it was a sign of weakness and caused great setback to attempts to resolve the Kashmir issue. The decision was completely political,” Justice Shah told The Indian Express.
Incidentally, former Jammu and Kashmir chief minister Omar Abdullah had also said Guru had been hanged for “political reasons”, and that even he had been informed just hours before the execution.
Asked if he agreed with the way in which the government and the Supreme Court handled the mercy plea and the petition filed by 1993 Mumbai blasts convict Yakub Memon , the jurist said, “Both the Executive and the Judiciary didn’t perform their duty completely and transparently.
“I have so far refrained from speaking on this issue as I was holding this post. But now I can speak freely. I don’t know what was the great hurry to hang him. This is not the sign of a vibrant democracy. The manner in which the Supreme Court handled the case, holding a hearing pre-dawn, also was not good. It was almost as if the Judiciary was trying to stick to the deadline to hang him. This hanging has alienated an entire community. Look at the crowd that came to attend his burial. Unfortunately, the signal that has gone out is that there are two sets of rules for dealing with such cases — one for killers like Rajiv Gandhi’s and another for those from the minority community like Yakub Memon. This is very unfortunate,” he added.
Elaborating on the role of the judiciary, he pointed out that several important reasons were ignored while deciding Memon’s case as well as the mercy petition.
“The governments may have an ideology but it should have absolutely no impact on the judiciary. Were all grounds taken into consideration while deciding his mercy plea? My feeling is that the due process was not followed,” he said.
To a question on whether he thought the entire mercy petition process was flawed, Justice Shah said, “It is provided for in the Constitution. But, yes, it is the decision of the Executive and not the President. Earlier, we had tall leaders as President, people who could put their foot down if they didn’t agree with the viewpoint of the government; look at the number of people whose mercy pleas were accepted by earlier Presidents like Rajendra Prasad. That is not the case with recent Presidents.”
He also agreed that the manner in which mercy pleas are decided leaves a lot of room for questions about the lack of transparency. “There are guidelines that must be followed,” he said.
Asked if the NDA government would accept the Commission’s recommendations on abolishing death penalty, Justice Shah said, “I am aware of this government’s views. But, how can I not be hopeful?”
In its report, the Law Commission, while questioning the “rarest of rare” doctraine, has noted that administration of death penalty, even within the “restrictive environment of rarest of rare doctraine”, was constitutionally unsustainable.
It also pointed out that in the last decade, the Supreme Court had on “numerous occasions expressed concern about arbitrary sentencing” in death penalty cases, adding, “There exists no principled method to remove such arbitrariness from capital sentencing.”