The Afzal Guru controversy Conversation with Senior Advocate Aman Lekhi

Bar & Bench speaks to noted criminal lawyer and Senior Advocate Aman Lekhi to get his views on the controversy surrounding Afzal Guru’s hanging. Lekhi says Afzal Guru deserved to the hanged but disapproves of the way in which it was done..Bar & Bench speaks to noted criminal lawyer and Senior Advocate Aman Lekhi to get his views on the controversy surrounding Afzal Guru’s hanging. Lekhi says Afzal Guru deserved to the hanged but disapproves of the way in which it was done..Bar & Bench: What are your thoughts on the way Afzal Guru’s hanging was handled?.Aman Lekhi: There cannot be an easy or straight answer to this question because it is, in some way, affected by the state of our polity. One thing is completely incontrovertible – Afzal Guru deserved to be hanged. Considering the law as it stands, the conditions in which death penalty is to be awarded and what Afzal Guru was accused of, that was the appropriate punishment in terms of our law. So we can’t complain that the execution was not warranted. Moreover, the procedural and substantive due process was duly complied with. We also have these activists ranting that he was not given adequate legal assistance. That is factually incorrect as this issue was also examined by the Supreme court..B&B: The mercy petition had been pending for over 6 years. The clemency was rejected on February 3, 2013 and six days later Afzal Guru was hanged. Why the haste and the secrecy?.AL: I feel that the hurried manner in which Afzal Guru was hanged does not have an impact on the fact that punishment was warranted. It does, however, have an impact upon the immaturity of our polity. There is an element of fear, of embarrassment etc particularly where tough decisions are concerned. If there is a tough decision to be made, the consequences are going to be problematic. In such situations, one has to take the decision notwithstanding the consequences. So let the legal process takes its course. If you have to intimate the family, do it but remain steadfast..I feel the government was apprehensive about the repercussions of this being made public. It was concerned that it might be stayed by the Supreme Court if at all and there would be controversy about the entire exercise and that would stall the process all over again..Two things emerge from this. Firstly, if we feel that certain things have to be gone through, they must be gone through again notwithstanding any controversy. But that requires a level of maturity, of self confidence, of conviction in what is good for the country, which is lacking..Secondly, it is not unreasonable to presume that certain political points had to be scored which is the unfortunate part about the entire exercise. Even the right decisions are not taken for the right reasons. So for the wrong reasons, a right decision was taken. You can fault the decision maker for the manner in which the decision was taken. What we are seeing today is that while faulting the decision maker, we are faulting the decision itself. So while I will not, in any way, approve of the way in which this was done, I will not say that the doing itself is wrong..B&B: The rejection of mercy petition is not the end of the process. Afzal Guru had a right to move the Supreme Court didn’t he? Your views. .AL: The power to grant clemency is in the complete discretion of the President. However, the most fundamental principle of the exercise of pardon is that it should not be exercised for political considerations. So you have to look at what is good for the society and whether it would be worthwhile to save a life; or is the person so beyond redemption or the crime so barbaric, that the person who commits it forfeits the right to survive (as per the existing law). While that power is being exercised, political expediency is not to be considered. If political expediency is not to be considered while deciding the clemency, the reluctance to go forward after rejecting the clemency is also a manifestation of political expediency..If political considerations come in the way to distort the process, to prevent it from reaching its conclusion, i.e. the execution, that which is irrelevant when the clemency is being decided can’t become relevant at the time when clemency is rejected. So you cannot at a subsequent point of time say that because the period of time which has lapsed, the accused cannot be hanged. Political considerations should be alien to decision making. I have serious issues with people who talk about delay because that is simply perpetuating a wrong. Here, the clemency was rejected. He had a right in law to challenge it. In so far as the exercise of that particular right is concerned, we have to see what is the consequence which would ensue presuming one has a right which is not conceded. In this case, the consequence which ensues shows that the result would have been the same whether the right would have been given or not. While everyone is clamouring that he was not given that particular right, my question is what is the right they are seeking to enforce? The only right they could seek to enforce is delay. But delay will not be available because that goes with political expediency. So what are they protesting about?.B&B: But as you said earlier, the law allowed Afzal Guru to challenge the rejection of the mercy petition and he was not given that opportunity?.AL: Law allows us to do things but at times it also disallows us from doing things. When we are not allowed to do them, law also sees what is the prejudice and would the decision have been any different had what law conceded to us was given. If what would have followed would have been the same as that which was denied, the mere fact of denial will not make the decision wrong. Presuming he had challenged it, his ground would not have been delay?As far as delay is concerned would that not have been political expediency?.It is high time we grow up, see things as they are, and have the guts to say that we will not tolerate it and be principled enough to say that we believe in what we do and we will take it to its logical conclusion. Unfortunately, we as a country don’t have that kind of character..B&B: Do you think injustice has been done to Afzal Guru?.AL: I don’t think injustice has been done in this case..B&B: Mercy petitions are pending for years. A person on death row has the right to know expeditiously whether he will live or die. Do you think there should be a specific law which provides for a time frame within which the mercy petition needs to be decided? .AL: Unfortunately, in this country we need laws for everything. But everything can’t be managed on the basis of formal legal statutes or rules. It is time we created “moral heritage”, as stated by one of the American judges. How do you create this moral heritage? It can be through appropriate conduct, through right precedents, through a way of dealing which cannot be faulted on any ground whatsoever whether there is a law or not..When there is no time fixed for doing an act, the law says do it in a reasonable time. What is a reasonable time will vary. We cannot fix a timeline for every act because there may be situations where a timeline may lapse. In matters like these, it is difficult to adhere to a timeline. The question is what stops us; what stops the government from acting, the courts from intervening or not intervening within a reasonable time..Everyone knows what a reasonable time is. So, do it within a reasonable period of time but don’t add to the laws. A time frame may or may not be appropriate to the situation. There may be hundred different contingencies and so, I am not in favour of it. If we put a time frame of say 6 months or 8 months or 1 years, then there will be a controversy on why 6 months, why 8 months, why not one year etc..Why quantify the reasonable time? Reasonable time will be appropriate as per the circumstances..B&B Do you think it is time to abolish death penalty?.AL: No. I have got my own theory about it. Ours is a soft State. There is, even at best of times, complete lawlessness here. Law doesn’t create any element of fear. With the system slightly decrepit and the enforcement in many ways lacking, if the nominal threat of death is removed, then that phobia about punishment would to that extent be diminished further. It (death penalty) has a purpose. It has a symbolic value. The shock which Afzal Guru felt, the outrage which is being felt by others (now Veerappan’s associates are going to be hanged) is because there is suddenly a feeling that State has suddenly become active and death penalty can actually be given..The problem today is that death penalty has lost its meaning because of the way in which it is implemented. Because of that, the perception of it as a punishment is in some way affected. Death is not the rule, it is the exception. Our law is very stringent as to when the death penalty is to be given. That is why I think there is no other way..Also, look at the alternative. In life imprisonment, one has to live rest of his life inside four walls completely adrift of what is happening outside. That kind of condemned life is in many ways far worse than death. Thus, so as far as the alternative is concerned, what happens subsequent to a life imprisonment is not in any way better because that is not life as we understand. So we can’t say that the alternative to death penalty is better and so death penalty is bad..It is also not necessary to look at the ethics of it. One has to look at the pragmatic effect of it. You, as a country survive on something far more practical and real and not on misplaced idealism. Considering the state of our polity, the kinds of threats which it faces and the number of people hostile towards us, having extreme penalties and implementation of the same on people who in some way impact us and our country, is warranted and very very necessary.