New Delhi: While many question the decision to fast track the execution of Mohammed Ajmal Kasab, following news of his early morning hanging at the Yerawada Jail in Pune, a former defense lawyer for the lone surviving terrorist of Mumbai's 26/11 attack, says clemency is not a matter of logic or chronology.
"A clemency petition is not looked at in chronological or serial order. Whose case has to be looked into or not is the prerogative of the President of India," KP Pawar, who represented Kasab in the trial court told Firstpost.
"The constitution allows the President the privilege to choose whose case to take up on a priority and whether or not a conviction can be reconsidered or not on humanity grounds," he said.
"There is no law to say that mercy petitions are taken serially," Pawar said.
In May 2010, Mohammed Ajmal Kasab was found guilty by a special court of 86 charges levied on him, including murder, criminal conspiracy and waging war against India. Four days later, on 7 May, the court sentenced him to death by hanging for his role in the terrorist strike on Mumbai in November 2008, which claimed the lives of 166 persons.
The Supreme Court in August this year upheld the death sentence awarded to Kasab by the special 26/11 court. And on 5 November, President Pranab Mukherjee rejected his mercy petition.
Following the President's decision, Kasab was shifted from Arthur Road Jail in Mumbai -- where he was lodged since his arrest in 2008 -- to Yerawada Jail in Pune where he was hanged and buried this morning.
According to the National Crime Records Bureau (NCRB), only one execution has been carried out in India since the year 2000. Kasab's will be the second.
While welcoming the death penalty for the gunman, other lawyers who defended Kasab said that the secrecy over his hanging was questionable.
"It is good that the government expedited this case as it must have been done in the interest of the society and victims. May be guarding him for so long was becoming a burden on the exchequer. But why the secrecy ?" Lawyer Amin Solkar, who defended Kasab in the high court, was quoted as saying by PTI.
Farhana Shah, who along with Solkar defended Kasab in the high court, also told PTI,"I was shocked. It was all of a sudden. Why was the execution shrouded in such secrecy?"
Given the political uproar over other death row convicts the secrecy is hardly a surprise.
As of August 14 this year, decisions on 12 mercy petitions of 17 death convicts were pending with the President of India, according to the Ministry of Home Affairs . Since then, one of the petitions, that of Balwant SIngh Rajoana, killer of former Punjab Chief Minister Beant Singh, has moved to the Home Ministry. The remaining five convicts on death row whose petitions were rejected by the President have approached the courts against the rejection of clemency.
Among the sub-judice cases are that of Rajiv Gandhi killers — Santhan, Murugan and Perarivalan — which was stayed by the Madras High Court on 30 August last year after pro-LTTE and Tamil politicians made a hue and cry over it citing "the sentiments of the people and the state". This, despite the President having rejected their mercy plea.The Tamil Nadu Assembly even passed a unanimous resolution urging the President to reconsider their mercy petitions.
Despite the then Union Law Minister Salman Khurshid having said that the Assembly resolution was “not binding on anyone”, the three have still not been sent to the gallows.
Balwant Singh Rajoana's case is another such case, which the execution has been stalled due to political interference. Punjab chief minister Parkash Singh Badal, president of influential Sikh body Shiromani Gurudwara Prabandhak Committee (SGPC) and the BJP-partnered Punjab government sought clemency for Rajoana from the President earlier this year.
Pawar told Firstpost that while the President's word is normally taken as the last word, there's no stopping people from going to courts seeking a review or challenging the President's decision.
"Suo moto there is no action. But, if someone files a petition in the courts on humanity grounds, the court will hear it," he said.
Pawar however also said that the President's word is usually final and most such decisions cannot be changed, only delayed.
"If everyone challenges the President's decision then it sets a very bad example and is also not good for the process of law," Pawar said, adding, "The clemency petition is final and nothing can change or happen after that. In almost all cases, the President's decision cannot be changed, it can only be delayed."