Mahendra Nath Das’s mercy plea: Why SC commuted his death sentence


, TNN | May 3, 2013,

Mahendra Nath Das’s mercy plea: Why SC commuted his death sentence
Former President APJ Abdul Kalam had in 2005 favoured commutation of Mahendra Nath Das’s death penalty to life term.
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NEW DELHI: Revealing the casual manner in which mercy petitions are dealt with, theSupreme Court found that former President APJ Abdul Kalam’s 2005 note favouring commutation of Mahendra Nath Das’s death penalty to life term was never placed before his successor Pratibha Patil, who rejected Das’s mercy plea in 2011.

This and the 12-year delay in deciding Das’s mercy plea were cited by a bench of Justices G S Singhvi and S J Mukhopadhaya to commute hisdeath sentence to life term on Wednesday.

Kalam had considered the mercy petition in light of the recommendation made by the home minister and passed an order on September 30, 2005, saying, “I have considered the mercy petition proposal sent for my consideration in respect of Mahendra Nath Das. I find that though the crime committed was of a gruesome nature, yet the conduct of the accused does not show trace of pre-meditated murder. The crime can well be attributed to a gross lack of mental equanimity on his part.”

Kalam continued, “In such circumstances, his mercy petition in my view, be accepted and his death sentence commuted to life-long imprisonment (that is for the rest of his life). During his further incarceration in prison, he may be given periodic counseling by spiritualist and moral leaders which could help reform his personality and mental psyche. This may be considered.”

Apart from the delay in considering the mercy plea, the bench of Justices Singhvi and Mukhopadhaya noticed that the home ministry had prepared another note on Das’s mercy plea on October 5, 2010, with reference to Kalam’s note.

But “what was most intriguing” was that while making a recommendation on October 12, 2010 to Patil for rejection of Das’s mercy plea, the home minister did not mention Kalam’s note of September 30, 2005. “Why this was done has not been explained by the respondents,” the bench said.

“Omission to make a mention of the order passed by her predecessor and note dated September 30, 2005 from the summary prepared for her consideration leads to an inference that the President was kept in the dark about the view expressed by her predecessor and was deprived of an opportunity to objectively consider the entire matter,” Justice Singhvi, who authored the judgment, said.

“Therefore, it must be held that the President was not properly advised and assisted in the disposal of the petition filed by Das,” the bench said.

“In the above backdrop, we are convinced that 12 years delay in the disposal of Das’s mercy petition was sufficient for commutation of the sentence of death and the division bench of the (Guwahati) high court committed serious error by dismissing the writ petition solely on the ground that he was found guilty of committing heinous crime,” the bench said.

“The rejection of Das’s mercy petition is declared illegal and quashed and sentence of death awarded to him by the trial court, which has been confirmed by the high court and this court is commuted into life imprisonment,” it added.

 

The disturbing truth about an execution #Afzalguru #deathpenalty


USHA RAMANATHAN, The Hindu March 13,2012

 

 

By hanging Afzal Guru secretly so that he could not approach the courts, and ignoring the pending case that could have affected his sentence, the Home Minister acted illegally

On March 6, 2013, in response to an RTI request, the President’s Secretariat made available documents pertaining to Ajmal Kasab’s mercy petition. People from across the country and the globe had written to the President asking that he use his clemency power so that the power of the state to take life would be reined in. Recurring with unexpected frequency was an appeal that, if the mercy petitions were to be rejected, the “President and the Ministry of Home Affairs … respect the practice of promptly informing the individual, his lawyers, his family, of the decision, reasons for the decision, and proposed date of execution as well as the public of any scheduled execution.” Ajmal Kasab was hanged in secrecy on November 21, 2012. Less than three months later there was another secret execution, of Afzal Guru.

In India, of course, this is not about a ‘practice’. It is the law. On February 9, 2013, when Afzal Guru was hanged, was the law followed?

PROCEDURE FLOUTED

The disturbing truth is that Afzal Guru’s execution was illegal. The government flouted the procedure established by law in executing Afzal Guru the way it did; and the Constitution is categorical, in Article 21, that no one shall be deprived of life or personal liberty except according to procedure established by law. The Jail Manual is clear: “On receipt from the Administrator of the final confirmation about the date of execution of a convict, the convict and his relatives shall be informed about the date of execution by the Superintendent.” ‘On receipt of’ the ‘final confirmation’, the convict is to be informed. It is, however, reported that Afzal Guru was not informed till 5 a.m. on the day that he was hanged; a mere two hours before he was taken to the gallows. It is impossible, not merely improbable, that the Superintendent did not know about the date of execution till that last minute. By not informing Afzal Guru, the Superintendent breached the law.

The relatives too “shall be informed” about the date of the execution on receipt of final confirmation. To inform is not to send a letter or other missive; the duty cast by the law on the Superintendent is to ‘inform.’ The point of the provision is to give notice of the impending execution of the convict. Afzal Guru’s family learnt of the execution when the rest of the world heard about it, and through the press. The letter sent by speed post reached them two days after he had been executed. Informing the family is not, as some have suggested, about humanitarian considerations; this is about a violation of the law in the process of depriving a person of life.

It is reported that Afzal Guru was buried in jail “in accordance with a directive from the Delhi administration, with the jail authorities saying that there was no request from the family to claim it” (Economic Times, 15.2.2013) This was a deliberate and self-serving distortion of facts.

The Jail Manual prescribes that the convict may “if he so desires, be permitted to prepare a will in accordance with his wishes. If the convict does not desire to prepare his will, his statement to that effect shall be recorded by the Superintendent”. Was Afzal Guru given time to decide about his will? If he was informed of his impending execution at 5 a.m., as is reported, could that have provided him with the opportunity to decide about his will? He had not met his family in a long time. He had no time to get legal help — something that evaded him at every turn. And he was being informed of his execution, literally, on his way to the gallows. Does this constitute conformity with the law? Plainly not.

DELIBERATE BREACH

It appears from pronouncements following the execution that these breaches were not caused due to oversight; that they were deliberate. If there are no adverse consequences for these deliberate violations of the procedure prescribed while taking life, it will clear the way for absolute power over life and death. Afzal is beyond reach, so the wrong done to him cannot be undone. His family, however, has borne the pain that this injustice, and violations of the law, have brought to them. Few would disagree that the family has been wronged. There have to be consequences. A public apology which will be an acknowledgement of the wrong done — that will also dilute the impunity that is growing every passing day. Reparation, to the family that has been wronged. And, action against those who were in violation of the law; that would be an act of respect for the rule of law.

Secret executions seem to have acquired the status of state practice. When Kasab was hanged, surreptitiously, in the early hours of November 21, 2012, the Home Minister explained that one of the reasons for practising secrecy was to avoid the possibility of anyone approaching the court, which could delay the execution. He repeated it, as one would a formula, after Afzal Guru’s execution. This is unconstitutional. No one can be deprived of his or her right to judicial recourse. For the Home Minister of the country to ensure secret execution so that such judicial recourse may be denied is against all norms of civilised jurisprudence.

A Bench of the Supreme Court has reserved orders on the effect of delay on the execution of the sentence of death. The judgment of the court, which is yet to be delivered, would have had a direct bearing on whether Afzal Guru’s death sentence could be carried out, or not; he had been under the shadow of the death sentence for over 10 years when he was hanged. On 20 February, 2013, when a three judge bench of the Supreme Court stayed the execution of the four alleged aides of the forest brigand Veerappan, it was on the express recognition that the decision of the court that had reserved orders was of direct relevance to the convicts before the court.

This was the judicial consideration to which Afzal Guru was entitled. The punishment is irreversible, and, for that reason, should have been deferred till the outcome in the pending challenge. By executing him secretly so that he may not approach the courts, and by ignoring the pending case that could impact on his death sentence, the Home Minister acted illegally. The court needs to demand an explanation from the Minister about the nature of the power he seems to think he has.

LACK OF REPRESENTATION

On 11 February, 2013, two days after he had been executed, a case was quietly disposed of in the Supreme Court. Early in 2011, Afzal Guru had filed a petition in the Supreme Court asking for his transfer to Srinagar Central Jail so that his family, which included his mother, wife and young son, could visit him — something that distance and cost was making prohibitive. This case was filed through the Supreme Court Legal Services Committee, but the lawyer was repeatedly absent from the hearings, which prompted the court to ask the SCLSC to look into it and submit a report to the court.

As reported by V. Venkatesan in The Hindu (19.2.2013), the lawyer told the court on 23 November 2012 that someone else would be representing Afzal Guru; the court asked the SCLSC to find an explanation for the tardiness and submit a report to the court; the status of the case, on 4 January, 2013 did not indicate that any report had been filed. This was just one more time that Afzal Guru was left without proper representation. And, a single judge, in chambers, on 11 February, merely took judicial notice of the execution, found that the hanging had made the petition infructuous, and dismissed the petition!

The least that this calls for is an enquiry, followed by consequences for violations of the law, an apology and reparation to the family of Afzal Guru, an end to secret executions and a guarantee of non-repetition.

(The writer is research fellow at the Centre for the Study of Developing Societies, teaches law at the Indian Law Institute and is a regular guest professor in many universities around the world)

 

I Have Repeatedly Received Death Threats – Frederica Jansz, former editor-in-chief of the Sunday Leader


By Nilantha Ilangamuwa

22 September, 2012
Srilankaguardian.org

Founder hacked to death in daylight his successor sacked the future of the “Sunday Leader” questioned 

(September 21, 2012, Colombo, Sri Lanka Guardian) Here is an exclusive interview with the former editor-in-chief of the Sunday Leader , Frederica Jansz just moments after she was forced to resign by the new ownership of the paper, due to her refusing to accepted new editorial policy.

NI. Frederica, welcome to the Sri Lanka Guardian. Your services as the editor-in-chief of the Sunday Leader have been terminated as you refused to change editorial policy to support the government. What did they (owners) ask you to do? What are the basic points that you cannot stand with?

FJ. The new owner Asanga Seneviratne insisted that the articles carried in The Sunday Leader are “malicious and rubbish.” He ordered me to stop being critical of President Mahinda Rajapaksa and his family. He also asked me stop carrying cartoons of the President. He then added to a police complaint made by Sajin Vass Gunewardena, which claimed that a nutshell carried in The Sunday Leader of September 16 would incite violence against the President.

Despite my maintaining that the type of journalism practised at The Sunday Leader was independent and unbiased he could not understand or accept this position. As for me, I cannot work for someone who does not understand or respect freedom of expression or journalistic independence and credibility.

NI. You are the editor who took sole responsibility of the Sunday Leader just after the assassination of the late Lasantha. What are the challenges you faced in the last couple of years?

FJ. The challenges have been huge. Apart from having to revive a newspaper that had suffered a staggering blow following Lasantha’s assassination, I have had to deal with continuous harassment and threats including court cases and finally being insulted and maligned in a manner most degrading by the Defence Secretary, the President’s brother.

NI. Do you and your family feel safe to stay in the country?

FJ. No. I have repeatedly received death threats and even been followed home.

NI. I don’t want to reiterate words that the country’s secretary defence used in a recent interview published by the Leader. You had bitter experiences many times when you were directly dealing with those key players in the country. Can you brief us on the present political system in the country?

FJ. In terms of media freedom, the current political system will continue to stifle free of expression and the right to information. If compared to a thriving democracy, Sri Lanka continues to lag far far behind.

NI. At some point we talked about “Sri Lankan Journalism”. Do you have anything special to share with the people in this crucial time?

FJ. It is sad that journalists in Sri Lanka have chosen to be cowed into submission. Next to winning the war, this in fact is this government’s second biggest success. The stifling of the local press.

NI. This is a worse stage of social control in the country by the regime. So now the Government has taken over most of print, electronic and other media, while giving the public a clear cut picture on censorship. What would be the future if this scenario continues?

FJ. An autocratic regime. With a stifled press accountability and transparency are non-existent.

NI. Do you think the opposition and the civil society can intervene to solve this stalemate?

FJ. The opposition is dead.

NI. Is there any role to be played by the international community?

FJ. I frankly do not think this government really gives a toss about the international community or what they may think or say. Other than China – and we all know their track record as far as freedom of expression is concerned.

NI. Most people welcomed the draft resolution by the US on Sri Lanka, which urges the implementation of recommendations given by the LLRC. The people of Sri Lanka expect that the government will be encouraged in the Universal Periodic Review to take gradual action, not only at the legislative level, but beyond that to implement basic principles of rule of law. Do you have any suggestions to the UPR which is going to have on next month?

FJ. Amongst the voluntary commitments undertaken by Sri Lanka, one is to “strengthen its national mechanisms and procedures to promote and protect human rights and fundamental freedoms of all its citizens through the adoption and implementation of the proposed National Plan of Action”. Despite the government promising to implement the targets set out in the plan by 2009, it was only in 2012 that the initial stages of implementation were underway.

NI. This is my final question. You were a remarkable and fearless editor who worked in a tremendously stressful social situation. What is your plan for the future?

FJ. Change is a part of life. So for me, this is just another opportunity for a new beginning.

Shall we film the President ? #FOE #Censorship


 

Why doesn’t India make prez movies?

Priyanka Dasgupta, TNN

(Still from Politics of Love )

India doesn’t have a Presidential form of government. Censor Board of Film Certification will not clear a film about our President that’s even remotely controversial.

Indian Presidents have largely led uneventful lives that haven’t interested our directors enough to make movies on that.

The above are just three of the many reasons often put forward when asked about the conspicuous absence of any movies made on the President of our country. The only cinematic indulgence with a rashtrapati has been in the form of Kunaal Roy Kapoor’s The President is Coming starring Konkona Sen Sharma and Shernaz Patel and Subhash Kapoor’s “Phas Gaye Re Obama” starring Rajat Kapoor, Neha Dhupia and Amole Gupte. Unless, of course, one includes Mallika Sherawat’s “Politics of Love” on the unexpected romance that develops between an Indian-American, Democratic campaign worker Aretha Gupta ( Mallika Sherawat) who falls for an African-American Republican Kyle Franklin ( Brian White) before the 2008 US Presidential Election.

While Indian cinema finecombs reality to find drama in real life, those surrounding the President’s life, scandals and controversies have never been a fodder for celluloid. Forget biographical movies, we haven’t even seen any attempts like “Wag The Dog” (about how a spin-doctor and a Hollywood producer join to “fabricate” a war in order to cover-up a presidential sex scandal), “In The Line of Fire” (about a disillusioned and obsessed former CIA agent who attempts to assassinate the President of the United States and the Secret Service agent who tracks him) or “Vantage Point” (about how the attempted assassination of the American President is told and re-told from several different perspectives). Speculations are rife that Hollywood is making Reagan on the man who once co-starred with a chimp and went on to become the head of the country.

Though it’s not completely incorrect to say that Indian Presidents have largely led uneventful lives, Pranab Mukherjee nomination has been quite engaging. The will-she-won’t-she tension over Mamata Banerjee’s support, her facebook campaign for APJ Abdul Kalam and EC rejecting Samajwadi Party chief Mulayam Singh Yadav’s vote in the presidential election — all that ensured that this year’s presidential poll vaults have entered drawing room conversations. Once in drawing room conversations, has the plot of making of India’s 13th President lent itself to cinema?

Says Anuvab Pal, the script writer of “The President is Coming”, “I don’t think there is anything more to add in fiction that hasn’t already been done in the press about Pranab Mukherjee’s presidential candidature. I would be interested in penning a script on Pranab Mukherjee’s difficulty as a finance minister. I generally like political stories. My new play, “The Bureaucrat”, is getting packed houses because we love to make fun of politics. People stay away from it because they feel if a politician, or party, thinks it’s a mockery of them, they might get into trouble. So, people self-censor.” Pal thinks it would be interesting to write a film on the Indira Gandhi and Giani Zail Singh relationship. “The difficulty would be to make it engaging for the youth today,” he says.

Shyam Benegal, who made a biopic on Netaji, sees no point in India aspiring to make movies on presidents simply because the West has been doing them. “We have a different form of government. Why should we ape the West? We are a nation with work in progress. If I were to make any film, it would be about the political system. If the President gets featured, it would be incidental.”

But for Goutam Ghose, who has made a documentary on Jyoti Basu, a feature film on Pranab Mukherjee is an exciting proposition. “Saying that the Censor Board will create problems or that we don’t have a Presidential form of government is just an alibi. In India Win’s Freedom, Maulana Abul Kalam Azad has argued that India wouldn’t have been divided had our country adhered to a truly federal structure. Lord Mountbatten’s mission messed up the whole thing and partition became a reality. We keep on saying that our President doesn’t have much power. But the Constitution does guarantee our President a lot of power. I’d be interested in making a movie that examines how Pranab babu, rises above the problems between the Centre and state, to truly use his power and ensure that India becomes a federal nation. A plot on how a person, who has served so many portfolios, handles power to address issues of the subaltern classes in India interests me as a director,” Ghose says.

 

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