Several mercy pleas, including that of Ajmal Kasab, one of the executioners of the 26/11 Mumbai massacre, were of high-profile nature and attracted a great deal of attention. I was shocked that a man of such tender age had adopted the path of large-scale violence. He knew he would be hanged if caught, and yet he conducted the terror attack. People like him get misled because of the training and brainwashing they receive from their handlers.
But none of these factors affected my decision-making, which was based purely on the facts of the terror attack. Here was a man who had been convicted by the trial court, and the conviction had been upheld by the High Court and the Supreme Court unanimously.
Kasab’s Mercy Plea Was Kept Pending By Previous Presidents
He had crossed over from Pakistan, though Pakistan officially denied it and even disowned him as a Pakistani. His mother was in Pakistan but even she did not come forward to acknowledge her son’s identity. I told the then Pakistani president, Asif Ali Zardari, that Kasab could not have come from some other planet; all evidence pointed to him being a Pakistani. Could Zardari deny that Karachi was in Pakistan?
Kasab’s mercy plea had been kept pending by my predecessor, and thus there had been a delay in deciding on it.
I was not aware of the time and date of his hanging beforehand. Files moved in New Delhi and the execution was carried out in Mumbai. It was not necessary for me to be kept informed. There are norms and procedures to be followed in such cases and I suppose they were adhered to. As far as I was concerned, my role ended once I rejected his mercy plea.
Hue and Cry Over Afzal Guru’s Trial and Execution
The other instances were that of Afzal Guru and Yakub Memon. In the former case, the BJP was in the Opposition then and demanded Afzal’s hanging without further delay. His mercy plea had not originally come to me. It had been placed before my predecessor who kept it pending, and thus there had been a delay in deciding on it. He had been convicted for his role in the 2001 attack on Parliament, and was hanged in February 2013 after I rejected his mercy plea.
There was a great deal of hue and cry over the episode, with certain rights groups claiming that he had not been given adequate legal representation and that his execution was carried out in secrecy. Amnesty International had said the execution pointed to a ‘worrying and regressive trend towards executions shrouded in secrecy’. There were Leftists and some activists from Jawaharlal Nehru University (JNU) that campaigned against his death sentence.
Multiple Phases of Afzal’s Trial
The case itself went through many phases. He was arrested by a Special Cell of the Delhi Police in December 2001 and charged under various provisions of the Indian Penal Code (IPC) and later the Prevention of Terrorism Act, 2002 (POTA). The court-appointed lawyer for the accused later withdrew from the case, citing overload of work, and another lawyer was appointed. A few others, including former Delhi University professor, S.A.R. Geelani, were also arrested in connection with the case and tried.
Afzal made a confessional statement that was recorded by the appropriate authority of Delhi Police, but his lawyer subsequently alleged that the confession had been extracted from his client under duress. Afzal too disowned that confession, which was thereafter not taken by the court as evidence against him.
Trial continued in a special court and concluded in six months following a day-to-day hearing. Afzal was given capital punishment, and so was Geelani. The matter went to the Delhi High Court, which upheld Afzal’s sentence but acquitted Geelani. The Supreme Court too upheld the death penalty, and later on dismissed a review petition filed by Afzal. The convicted terrorist then filed a mercy plea before me.
In November 2012, I had sent seven cases, including Afzal Guru’s, back to the Ministry of Home Affairs. I requested the then Home Minister, Sushil Kumar Shinde, to review the opinion of his predecessor P. Chidambaram. A couple of months later, the home minister made his final recommendation, seeking the death penalty. I then rejected the mercy plea and Afzal was hanged in February 2013.
Yakub Memon’s Controversial Capital Punishment
Yakub Memon’s case was equally controversial. He was executed in July 2015. He had been convicted and given death sentence by a special Terrorist and Disruptive Activities (Prevention) Act court in 2007 in the 1993 Mumbai bomb blasts case. The court found that he was part of a criminal conspiracy to conduct terrorist attacks, disruptive activities and murder. Besides, he was charged with illegal possession of arms and ammunition.
Memon’s appeal before the Supreme Court did not succeed, as the court confirmed the capital punishment he had been awarded, saying that he was the ‘mastermind’ and ‘driving force’ behind the terror bombings. The court also rejected a review plea he filed later. His mercy plea file came to me thereafter. Taking everything into consideration, I rejected his request in July 2015.
My decision came in the wake of a detailed discussion I had with the then home minister, Rajnath Singh, and the then solicitor general, Ranjit Kumar. But the matter did not end there.
Memon filed a writ with the Supreme Court, saying that the execution be stayed till his mercy plea with the governor was decided—the Maharashtra governor had been petitioned too. I was flooded with letters from certain eminent personalities and political leaders, requesting me to reconsider my decision. The convicted person had also filed a writ petition before the apex court, this time challenging the order passed in a curative petition he had moved, claiming that the required quorum was not present, based on the interpretation of the rules of the Supreme Court. The two judges hearing the matter thereafter requested the CJI to urgently constitute a larger Bench and settle the matter. But Memon failed to get any relief even there.
Was Pranab Mukherjee in Dilemma Over These Executions?
Finally, as a last resort, his lawyers filed a fresh plea for a 14-day relief in the execution of the order on the ground that the president’s consideration of the mercy plea was too close to the execution date, thus giving an impression that the president may not have had sufficient time to apply his mind. The court met at midnight and in the early hours of the day, upheld the execution. He was hanged in Nagpur jail. Memon had claimed innocence all through the trial.
Unlike in Kasab’s case, where I had no doubts whatsoever, in the other two cases discussed above I was careful because of the various shades of opinion from both, those who wanted Memon and Afzal to be hanged and those who opposed the capital punishment.
While I, as president, had applied my mind to all the cases of mercy pleas that were presented to me with recommendations of the government, the fact remains that the president normally goes by the recommendations of the Ministry of Home Affairs in such cases. If the government recommends the rejection of a mercy plea, then the president has to concur; if the government favours a mercy petition being accepted, the president does so. I believe that if the government of the day recommends that a mercy plea should be rejected, then I as president must not stand in the way.
(This is an excerpt from the posthumously published final volume of Pranab Mukherjee’s memoir ‘The Presidential Years: 2012-2017’. The book has been published by Rupa and is now available at online and physical bookstores. The subheadings and photos have been added by The Quint.)