Article 72 provides that

"The President shall have the power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence –

(a) In all cases where the punishment or sentence is by a court martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the union extends;

(c) in all cases where the sentence is a sentence of death."

This power has been examined in a number of cases by the Supreme Court prior to the recent Andhra judgement. It has been consistently held that:

1. The President in the exercise of this power is bound to act on the advice of the cabinet;

2. That the exercise of this power is subject to judicial review;

3. However, the scope of the judicial review is limited to only examining whether there has been application of mind by the government and whether the power has been exercised on extraneous or mala fide considerations;

4. Once it is found that there has been application of mind and there are no extraneous or mala fide considerations, the court will not interfere with the government’s prerogative power by substituting its own judgement over the government’s.

So the crux of the issue is: What are extraneous or mala fide considerations? In this, the recent Supreme Court judgement in the Gowra Venkat Reddy case essentially does not depart from previous judgements. Considerations of caste, religion or political loyalty would clearly be extraneous considerations. In Venkat Reddy’s case the court came to the conclusion that the pardon was granted for mala fide considerations of political loyalty. However, it has been held earlier that the government can examine the evidence afresh and can exercise this power even on the ground that in its opinion justice has not been done or that the sentence is unduly harsh. But what about a case where the government comes to the conclusion that the execution of the sentence of death would create a strong sense of alienation among a significant section of people or that it will encourage and provoke several others to take to militancy? Would that be a relevant consideration for granting clemency or commuting a death sentence?

These are the precise questions that will arise in Mohammad Afzal’s case when the government considers the clemency plea on his behalf.

The issues are: Did he get a fair trial and, in particular, did he have a proper defence lawyer in the trial? Is the death sentence unduly harsh considering that he was not guilty of any violent act? Will his execution seriously alienate people in the Kashmir valley and push some towards militancy? Will the grant of clemency to him encourage militancy and inflame the feelings of people outside the valley? These are all relevant considerations for the government.

It would have to decide by taking all this into account.

Afzal, in fact, did not have a proper defence lawyer. Since the lawyers whom he wanted refused to appear on his behalf, he was provided with a novice by the trial court who barely cross-examined any witness against Afzal. Given the amount of fabrication of evidence and forced confessions obtained by the police in this case, which has been found even by the Supreme Court, it is not impossible that the evidence on which Afzal was convicted may have been rubbished if he had a proper lawyer in the trial court. Moreover, Afzal has not been convicted for any overt act of violence but only for providing help to the terrorists. A court which normally does not award the death sentence in such cases awarded it "to satisfy the collective conscience of the nation". The government can certainly take the view that this is not appropriate or that this would alienate and inflame the collective conscience of the people of Kashmir.

From the opinion polls and the reactions of people in the valley as well as the rest of the country, it is clear that there is a complete disconnect between the valley and the rest of the country. The majority of the people outside the valley have no idea of the level of alienation and anger against India. Far from containing militancy, the presence of a 6,00,000 strong security force in the valley is only fuelling the militancy. Hanging Afzal is likely to further fuel the militancy, just as the hanging of Maqbool Bhat did earlier. These are all valid and germane considerations for the government.

However, I believe that the death sentence should be commuted in such cases because the crimes of Afzal or even the terrorists who attacked Parliament are not committed for personal gain but because they nurse a strong sense of grievance against the perceived injustice done to them by the Indian state. Their crime was seen by them as a cause for which they were prepared to die. Such people cannot be deterred by hanging them. This is in fact likely to create more such militants. One can deal with such people only by trying to address their sense of grievance.

More fundamentally, however, capital punishment is a form of retributive violence by the state that only increases the culture of violence in any society. This is a culture that has been promoted by B and C grade Bollywood films that romanticise violence and, in particular, retributive violence. That is why, on the basis of deep sociological analysis, capital punishment has been abolished in 129 countries of the world. Violent crimes have in fact decreased in the countries where it has been abolished. Even in the United States, the incidence of violent crimes is greater in the states that have opted to continue with the death penalty.

There are many reasons therefore for commuting Afzal’s death penalty. But given the charged opinions on this issue and with the BJP threatening to make this a national issue, I doubt that this government will have the courage to decide the matter on rational and relevant considerations.