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Saturday 19 November 2011

Are we moving towards a separate Criminal Law for Minorities?

Are we moving towards a separate Criminal Law for Minorities?
Sandhya Jain
13 November 2011

In recent times, some clemency petitions concerning death row convicts have given rise to apprehensions that we may be subtly edging towards a de facto separate criminal law for minority communities, or persons covertly supported by minorities with a vested agenda. This bodes ill for a Republic already suffering from the consequences of an ill-conceived concession that allowed different groups to bypass the uniform civil code in favour of communal Personal Laws; now the use of political clout to wrestle special consideration in criminal matters could disastrously queer the pitch for our nationhood.

The issue is grave indeed, and merits dispassionate scrutiny.

Of all the criminal cases currently rousing passions in India today, the ongoing case of Ajmal Kasab possibly tops the list. The Supreme Court was right in upholding the majesty of law when, on Oct. 10, 2011, it decided to hear Kasab’s plea against the capital punishment awarded to him. As is well known, Kasab was the sole Pakistani terrorist arrested for his role in the sensational Mumbai 2008 attack, wherein he was caught on camera at Chhatrapati Shivaji railway terminus before being captured alive en route to Cama Hospital by brave heart constable Tukaram Omble.

Justices Aftab Alam and C.K. Prasad said they were aware that many in the country feel the appeal should be rejected outright. But the learned special bench permitted the terrorist to amend his Special Leave Petition and furnish additional grounds to challenge the sentence awarded to him by the special trial court on May 6, 2010, which was subsequently confirmed by the Mumbai High Court on Feb. 21, 2011.

One has no doubt the Supreme Court will eventually uphold the death sentence for Kasab, as there are no extenuating circumstances for his crimes. Hence, the writer rejects the clamour to hang Kasab at the earliest, just to end the massive expenditure incurred on his security in prison.

In other cases, however, there is legitimate disquiet over the manner in which minority politics has been brought to play in high voltage murder trials, and convictions. There is in fact a growing connivance between our secular elite and minority leaders to ensure ‘special consideration’ for minority convicts, an issue that is fraught with dangerous consequences.

Currently, politics is again being played in the case of Afzal Guru, convicted for his role in the attack on Parliament House on Dec. 13, 2001, which took 12 lives. Readers may recall that this trial was troublesome from the start, with human rights activists protesting against a trial that acquitted some and found others guilty. There was much hair-splitting about the nature of legal assistance available to various accused, though the accused and their NGO activist-friends always had the freedom to recruit appropriate counsel.

Now, when the entire judicial due process has been exhausted and the matter has reached the President (UPA-I shamelessly sat on the clemency petition), the matter has acquired a new twist.

It began innocuously when – tweeting over the Tamil Nadu Assembly’s resolution for commuting the death sentence of three convicts in the Rajiv Gandhi assassination case, after the President rejected their pleas – Jammu and Kashmir chief minister Omar Abdullah wondered if the national response would be as muted if the J&K Assembly passed a similar resolution urging commutation of death sentence for Afzal Guru.

This set the cat among the pigeons. On Sept. 2, independent MLA Sheikh Abdur Rashid submitted a resolution demanding clemency for Afzal. It was listed for discussion on Sept. 28, but orchestrated disruptions of the House caused it to lapse on the technical ground that it was not discussed on the day for which it was listed. While the major political parties in the State avoided taking a clear stand on the resolution, National Panther’s Party leader Bhim Singh said, “Acts done outside the State of J&K do not fall within the competence of the Legislative Assembly of J&K”. He said as the matter is pending before the President, the Legislative Assembly should not interfere with the process of law.

But what triggered the J&K-Afzal Guru episode was the unfortunate decision by Tamil Nadu chief minister Jayalalithaa to allow the Assembly to pass a resolution urging the President to reconsider the mercy petition of three death row convicts in the Rajiv Gandhi murder case, on Aug. 30, 2011.
A disgraceful precedent in this case was set by Congress party president Sonia Gandhi (widow of late Rajiv Gandhi), who intervened in the criminal case some years ago to demand clemency for convict Nalini, on grounds of sentiment. The fact that Nalini was the mother of a child born inside the jail during her incarceration was a matter for the Indian judiciary to decide, and was not at all a matter for the family of a victim.
Yet the Gandhi family has not hesitated to prance about in this case. Few years ago, late Rajiv Gandhi’s daughter Priyanka Vadra made a mysterious visit to Vellore to meet Nalini. The matter became public after a lawyer filed an RTI to bring the visit on record, and though Priyanka had to admit she met Nalini, she refused to explain if this was connected with reports that Nalini’s husband Murugan Sriharan was writing his autobiography. Worse, there was no record of Priyanka entering the jail to meet Nalini, which triggered speculation that the meeting actually took place at Vellore’s famous Golden Temple. Priyanka admitted visiting this temple.
At that time, there was intense speculation that the Gandhi family would seek mercy for the remaining LTTE activists in the murder case; the furore over Priyanka’s secret mission to Vellore may have dissuaded them. As LTTE is known to be a Christian terrorist organisation, backed by overseas missionary groups and Tamil Diaspora with deep Christian connections, Sonia Gandhi’s intervention in the Nalini mercy petition and Priyanka Vadra’s secret meeting with Nalini, must be seen as an instance of religion using politics to intrude into criminal law. [It is pertinent that Nalini’s daughter was whisked away by Christian activists and raised in London, the Mecca of all controversial aliens].
Tamil Dravidian parties have links with missionary groups since the pre-independence period; hence it is safe to assume a connection with the Tamil Nadu Assembly resolution seeking mercy for the convicts even after the President of India rejected their mercy petitions.
Now, with the President’s decision, the entire chain of due process has come to an end. The State should move to hang Perarivalan, Santhan and Murugan without further ado. The Centre, and also the Supreme Court, should have reprimanded the Tamil Nadu Assembly for passing a resolution that makes a mockery of law and justice in the country, and Sonia Gandhi and her family must be rebuked for treating murder as a matter of political and personal aggrandizement.
Ironically, Mr. Omar Abdullah raised a very pertinent issue when he asked why the country’s reaction to this dangerous resolution was so muted. And despite the awkward position in which this tweet landed him, it goes to his credit that he had the resolution scuttled – and not passed.
Mercifully, in Punjab, chief minister Parkash Singh Badal ultimately desisted from moving a resolution in the State Assembly for clemency for Devinderpal Singh Bhullar, an activist of the Khalistan Liberation Force.
Bhullar was found guilty of killing nine bystanders in a Sept. 11, 1993 car bomb explosion at Raisina Road, Delhi, intended to kill Youth Congress leader Maninder Singh Bitta, vocal critic of Khalistani separatists. Mr Bitta was seriously wounded in the attack, but survived. He had previously lost one leg in a 1992 bombing in Amritsar, in which 13 persons died.
Bhullar initially fled to Germany, but was extradited to India in 1995; he was found guilty by the trial court and sentenced to death by hanging on Aug. 25, 2001. The Supreme Court dismissed his plea against the conviction on Dec. 27, 2006, and the President rejected his clemency petition in May 2011.
In this case too, Mr Omar Abdullah pertinently queried why there was no outcry against the Punjab chief minister for seeking clemency for a secessionist and mass murderer. In fairness, we cannot disregard the J&K chief minister’s uncomfortable questions.

Now, the nation stands at an unprecedented pathway – a combination of Religion and Politics in intruding into matters of Criminal Law, and the Judiciary had not uttered a murmur of protest. Nor, for that matter, have other branches of Government, much less the Media.

The issue has the potential to derail the Indian Constitution’s carefully crafted separation of powers which is a basic feature of the constitution. It negates the separation of religion and politics. It voids the constitutional guarantee of non-discrimination on grounds of religion by giving weightage to criminals from minority communities in the award of punishment.

In essence, it would seem that the pigeons of Nehruvian politics are coming home to roost.

The author is
This article was written for the Diwali special issue of Organiser weekly

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