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Feb 18, 2013 at 05:14pm IST

The way Afzal was hanged is a blot on Indian democracy: Fali Nariman

Senior Supreme Court Advocate Fali Nariman has said that in a country like India, death penalty cannot be abolished easily but added that life imprisonment must mean imprisonment for entire life.

The eminent jurist while speaking to Karan Thapar on Devil's Advocate said the law needs to be amended by Parliament to ensure that in the rarest of rare cases life imprisonment means imprisonment for actual life.

ALSO SEE European Union regrets Afzal Guru's hanging

Below is the transcript of the interview.

Karan Thapar: Hello and welcome to Devil's Advocate. Did the government mishandle the hanging of Afzal Guru and has the time come to abolish the death penalty? Those are the two key issues I shall discuss today with one of India's most learned lawyers, the legendary Fali Nariman. Mr Nariman, let's start with the way Afzal Guru's family was informed that their mercy petition had been rejected and that Afzal Guru would be hanged. In this modern day of high-tech communication with literally just 36 hours in hand, was the government wise to rely on speed post rather than find a more effective method of communication?

Fali Nariman: No, I think our worst enemies couldn't have done it better. The way it was done is unfortunate. I am sure they didn't think this out. You see, these things have to be thought out from a humanitarian aspect. You may certainly hang somebody because the President has refused his mercy plea but at the same time humanitarian concepts are not alien to India.

Karan Thapar: Now the government says that they were bound by the jail manual which specifies that intimation must be sent by letter. But that manual was written before emails, faxes and mobiles came into being. So do you buy that argument?

Fali Nariman: Strictly comply with it, send a letter but that doesn't prevent you from phoning. The jail manual doesn't say that you can't inform by phone, that's the point.

Karan Thapar: Speaking to this programme last week the Minister of State for Home, RPN Singh had said that the government had it confirmed by the Director General of Police that the letter had been delivered before hanging, but the Chief Postmaster of Jammu, John Samuels has told The Indian Express that in fact the letter was delivered 48 hours after the hanging. Does the government have the duty to - a) clarify the situation, b) tell the people of India the truth?

Fali Nariman: I don't know, you see the government is so detached from the, every government I find unfortunately, from the wants of the people, needs of the people, desires of the people that it somehow forgets all this. But you must remember that who after all is the government, in a given particular situation. It's not the government as you define it, the Prime Minister and so on; it's some official of the government. Call him a home secretary, call him deputy home secretary, call him a Minister of State, some person who belongs to a particular ministry.

Karan Thapar: Or the Home Minister in this instance.

Fali Nariman: Or the Home Minister, but there has to be some compassion. I am afraid we have lost all ideas of compassion which should be at the basis of all governance.

Karan Thapar: So this handling of hanging of Afzal Guru shows not just lack of compassion, would you also say it shows absence of civility?

Fali Nariman: Well I think it's just not thinking properly, that's all. I don't know whether they meant to be uncivil. I am not sure. I don't think so. But what I do think is that you must think these things over, decide how it is to be done and don't give sporadic excuses about jail manuals, saying that letter should be sent. Send a letter but at the same time put through a phone call.

Karan Thapar: So this was thoughtlessness?

Fali Nariman: Thoughtlessness, absolutely. Recklessness, thoughtlessness.

Karan Thapar: Irresponsibility as well?

Fali Nariman: Yes! I think so. You can use any adjective.

Karan Thapar: Now what you make of the fact that in 2006 when the first death warrant was issued against Afzal Guru at that time, the magistrate consulted Afzal Guru's lawyer a certain Mr Pancholi and gave thirty days in time to inform the family. This time around barely 24 to 36 hours were given. If thirty days could be given in 2006, why can't the same time be given in 2013?

Fali Nariman: I suppose some idiotic idea in the mind of some minion of government that if somebody would rush to court, etc and obtain a stay. But so what if he does obtain a stay, very well it can be done some other day. There is nothing very fantastic about a particular day.

Karan Thapar: In fact there people say that the government deliberately chose to send intimation by slowest means possible and deliberately shortened the timeframe for the execution. Because they wanted to ensure that Afzal Guru's family didn't have an opportunity to go to the court after receiving news that the mercy plea has been rejected

Fali Nariman: I'm not very sure that would be correct, I don't think. It's sheer carelessness, thoughtlessness on the part of the authority. You call them the government but it's of some minion in the government after all.

Karan Thapar: Given that Rajiv Gandhi's assassins when they got the news that the mercy plea petition has been rejected had time to go the court. And that issue has got right back to the Supreme Court. By denying a similar opportunity to Afzal Guru's family, have they been done an injustice?

Fali Nariman: I must say your questions are remarkably right, You pointed question quite right. Of course they have been, absolutely I would think so. That's why I said on a humanitarian approach is, I mean transcend all Constitution and so on. You must have humanitarian approach to all subjects.

Karan Thapar: But you are also agreeing Afzal Guru's family have been denied in a sense their rights and injustice has been done to them by preventing them to go to the court again?

Fali Nariman: Yes, of course. In other civilised systems, they would get compensation but here we don't give compensation for anything. We don't give compensation for wrongful jailing. For putting people in jail for months or years and finally getting acquitted, nobody pays. In Europe, the state has to pay something if you wrongfully put someone in jail.

Karan Thapar: If this had happened in Europe or America, the Afzal Guru's family would have been entitled for compensation

Fali Nariman: Yes, by right of action, certainly. But that's just our problem. But that's just too many of us, so people don't care in India.

Karan Thapar: Would you agree with the comment that rather than treating hanging as a solemn legal procedure the government has also treated it as race against time, to get it quickly possible and to ensure that nothing comes in the way.

Fali Nariman: Yes possibly but I don't think so. I think it's just recklessness, that's all. Sheer carelessness and recklessness. They hadn't thought the whole thing out, that a matter of this important, after all we don't hang people everyday, Thank god!

Karan Thapar: Let me come to a second critical question. Did Afzal Guru himself or his wife Tabassum or his son Ghalib, all three of whom by the way are Indian citizens, have a right to farewell meeting before the execution?

Fali Nariman: Yes, absolutely. There is no question again and again on humanitarian principle, leave the jail manuals alone. I mean what would anybody say, whatever the point. And I'm sure it furthers to the mind of the president when he signed the warrant that he wouldn't be given this normal humane facility. I'm sure he must be extraordinarily annoyed with all this. But after all the way we function, these things cannot be made public, that's all.

Karan Thapar: The paradox is that in late 1980s when the situation in Punjab, was as tenuous as the situation in Kashmir today, Satwant Singh and Kehar Singh's next of kin and relatives were brought to Tihar jail to meet them before they were executed. If that courtesy could be extended to the Indira Gandhi's assassins in the difficult time of the late 1980s, could not it have been extended to Afzal Guru in 2013?

Fali Nariman: Yes, it could, but I'll tell you one anecdote about Satwant Singh. At that time the international commission of jurists sent a special message just a day before the hanging was organized to the President, and requesting him for mercy and the then secretary general said used an Irish phrase to point out that in the old days, they used to execute with a knife or sword like a guilty and there would be lot of blood. So grass never grows under coffers but unfortunately the then President R Venkataraman had made up his mind and he was hanged.

Karan Thapar: But you do accept that if Satwant Singh and Kehar Singh could be allowed to meet the kin before execution, there is no earthly reason why it couldn't have been possible for Afzal Guru to bid farewell to his wife and son.

Fali Nariman: You see these sort of treatment leads to giving the abolitionists, those who don't want the death penalty, really more material to say that if this is the way things are done, let the death penalty itself be abolished.

Karan Thapar: In fact many people turn around and say that allowing a dying man to bid farewell to his wife and son is simply a matter of human courtesy and decency. Do you think the Indian state has diminished itself by failing to live up to this minimal standard of behaviour?

Fali Nariman:Yes, but not consciously, I'm sure. Nonetheless that would be a legitimate influence to draw, and therefore some minion of government who has to be told that there is something wrong with our whole system of education, educating people in the humane aspect.

Karan Thapar: So why do you pin the blame on some minions of government? Why did you believe this responsibility doesn't lie right at the top of Home Minister himself?

Fali Nariman: Not directly but certainly indirectly it does. He has to take the knocks.

Karan Thapar: It also shows the whole system as callous.

Fali Nariman: Absolutely callous! It shows they have just not done their homework. As in many other things, they don't do their homework, which is very unfortunate. Some thing is really wrong with the whole administrative set-up.

Karan Thapar: So regardless of the rights and wrongs of the death penalty that was given to Afzal Guru about which the people have different issues, the manner in which it has been implemented has embarrassed India.

Fali Nariman: Absolutely, I would be greatly embarrassed if I would have been in the government. I wouldn't be able to answer, I mean truthfully.

Karan Thapar: So this a blot on our democracy, as well as our sense of justice

Fali Nariman: Yes, I think there is no doubt about it. You're absolutely correct.

Karan Thapar: Let me come to the third issue, do Afzal Guru's wife and son have right to his body and to bury the body where they want or in the special circumstances of this case, do you believe that the government is justified in retaining the body and burying it in Tihar jail as happened in 1984 with Maqbool Bhat?

Fali Nariman: On that I'm not very sure because I'm not very well-versed with the jail manual.

Karan Thapar: The jail manual says that if there is a danger of demonstration as a result of the body being released, the government can rightfully deny release. But on the other end, demonstrations are constitutionally legal. The way.. the fact that people are demonstrating doesn't mean to say it's illegal. So it is arguable that the rule of the jail manual conflicts with the constitutional principle.

Fali Nariman: The presumption is that every rule and law is constitutional, so I wouldn't go by that.

Karan Thapar: So I come back to this issue what do you think was the right thing for the government to do? Should it release the body or should it say no, in the greater interest of law and order and to prevent discord, this body would remain buried in Tihar jail? What you would say should be the right thing to do?

Fali Nariman: I don't know about the right thing, perhaps the latter. I'm not very sure whether the body would be removed.

Karan Thapar: Latter means retain in Tihar jail. But you accept this is very difficult borderline

Fali Nariman: Yes there are very difficult borderline sort of things. In any case I would think if there is an apprehension that this is going to be made in big demonstration etc later on. And if government is truly apprehensive than they would be perhaps justified in following the jail manuals.

Karan Thapar: So in this instance, apprehension and fear is sufficient ground to justify not releasing the body.

Fali Nariman: I would think so.

Karan Thapar: Let's come to the death penalty. 140 countries have either abolished or placed it in abeyance. India is one of 21 countries which still practise it. Has the time come for India to abolish the death penalty?

Fali Nariman: Great question, in fact judges are not agreed on this. People are not agreed on this. Presidents are not agreed on this, so it's a very doubtful situation.

Karan Thapar: But what is Fali Nariman's position?

Fali Nariman: My position is that in India it perhaps is better to leave the death penalty as it is in under present conditions.

Karan Thapar: You mean rarest of rare.

Fali Nariman:Yes, whatever that may mean. One judge saying rarest of rare and other is saying it's not. But let us leave it as it is, because we don't have 3000 executions a year, as people have in other countries.

Karan Thapar: No, but the number of executions we have is actually worrying. Suhash Chakma, relying on the statistics put together by international crime records bureau has worked out that in the last 10 years, the death penalty that has been awarded on an average is once every three days. That is pretty worrying in the eyes. Doesn't look like rarest of rare to me.

Fali Nariman: But has it been executed, implemented?

Karan Thapar: But it has been awarded once every three days. Doesn't that suggest that the actual awarding of the death penalty separate to the executing?

Fali Nariman: I'll tell.. take the instance of the judges, I appeared in the first case which dealt with the capital punishment and there I still remember the Chief Justice Sikri told us, told all councils since he was advocate journal of Punjab border state. He was always with the view that death penalty should be retained and must be retained. Because he said if you award imprisonment, so called imprisonment which is never for life than the man will come out and slaughter the entire village, that was his views. And I do know that very humane judges like HR Khanna who was also judge, a border state judge, took that same view.

Karan Thapar: Let me put it like this, in July 2012, that's barely nine months ago, 14 retired Supreme Court judges and High Court judges appealed to the Supreme court to commute 13 death sentences because in their light these have been awarded wrongly, either in ignorance or on the basis of erroneous judgment. Three or four months later in November 2012, the Supreme Court itself ruled that there was no uniform standards for the application of the rarest of rare criteria and that itself needed to be looked into. Doesn't that suggest the both serving and retired judges have deep concerns about the ways that the death penalties are awarded in India?

Fali Nariman: If by statute you can say that imprisonment for life notwithstanding with the powers of local and the central government to commute etc, can be or should be set aside than perhaps you are right. Keeping them for life may be rare but you must remember, the sovereign function of every republic or every country, the mercy plea or mercy jurisdiction is always open to be exercised and courts are very reluctant to control it.

Karan Thapar: So you are saying if you don't have life imprisonment which means imprisonment for life.

Fali Nariman: There is a bench decision of three judges which says so, life means life. But in my view, that's not quiet in accordance with the Indian penal code. It will have to be amended.

Karan Thapar: Let me interrupt what you are saying. You are saying if the death penalty is to be abolished in your eyes that would only be acceptable if law is first amended, to say life imprisonment means life imprisonment for life.

Fali Nariman:Absolutely. And that prerogative of mercy which is also a constitutional prerogative is removed by some means which can be done if you want to do it, can be done. But it can only be under those circumstances and not otherwise.

Karan Thapar: And Even though there are infirmities connected with those rarest of rare criteria, implementation that doesn't deter you from saying that you still need a death penalty.

Fali Nariman: Yes perhaps... no, unless you have this law. If you have this law which makes sure that a person who is convicted in a rarest of rare cases to death but in exercise of the court function is sentenced only to life, he has to be in life.

Karan Thapar: I fully understand, we need a death penalty unless you have a law which says that in the rarest of rare cases, where a man is sentenced for life, it means his entire life.

Fali Nariman: He won't come out, if there is a guarantee of the state that he won't come out.

Karan Thapar: So before amend the law, to abolish the death penalty, you have to amend the law, to say in certain cases life imprisonment means 'imprisonment for life'.

Fali Nariman: Yes and don't let them fool you by saying that is the view of some of the judges, no it has been expressed but it has been challenged as well for the same matter before the constitution bill.

Karan Thapar: In other words it cannot be judge laid-down law, it has to be law promulgated by Parliament, legislative law.

Fali Nariman: Legislative law, absolutely.

Karan Thapar: And so your advice to abolitionists is, don't seek abolition of death penalty in India unless first you seek an amendment by Parliament to ensure that in certain specified cases life imprisonment means imprisonment for entire life.

Fali Nariman: And that there is no power for the state to release him, no power at all.

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