The latest Supreme Court ruling that the power of the President and State Governors to pardon a convict is subject to judicial review and cannot be exercised arbitrarily has put in proper perspective the raging debate on whether Mohammed Afzal Guru, who plotted the Parliament attack and is facing the gallows, deserves mercy.
 
Setting aside the order of the then Andhra Pradesh Governor Sushil Kumar Shinde, remitting the sentence awarded to Congress leader Gouru Venkata Reddy held guilty of double murder, the court has said that while exercising the power of pardon, clemency, reprieve or remission of sentence, the President or the Governor should not be swayed by considerations of religion, caste or political loyalty. The power of clemency is not just for the benefit of the convict.   The President or the Governor has to keep in mind the effect his decision will have on the family of victims, the society and the precedent it may set.

The judgment has come at a time when President A P J Abdul Kalam is seized of the issue through two representations, one from Afzal's wife pleading for mercy and the other from the families of nine security personnel who lost their lives while foiling the attack on Parliament in December 2001, saying that Afzal deserves to die.

Among those who have supported Afzal's case for commutation of death sentence are documentary filmmaker Anand Patwardhan and Shaheed Bhagat Singh's nephew Prof Jagmohan Singh. They have said circumstances have made Afzal a terrorist and he need not die as a terrorist. Death will only make him a martyr in the eyes of a section and will not act as a deterrent. They have contended that Kashmir valley was virtually peaceful until the hanging of Moulana Maqbool Bhutt in 1984. It is not quite true. Militancy became full blown only after the 1989 rigged State Assembly elections.
 
Others like jurist V R Krishna Iyer have revived the campaign against death penalty itself. He cites the case of Irish Republican Army terrorist Thomas Mcmohan who assassinated Lord Mountbatten's wife through a bomb explosion. He was sentenced to life and was released in 1989 under the Good Friday agreement. A life convict can turn a new leaf like Valmiki, Justice Iyer believes.
 
A central point missed in the debate is that death sentence is given only in the rarest or rare cases. Further, under the amended Criminal Procedure Code, courts have to hear both sides before pronouncing sentence on the guilty. At that time, the defence can cite mitigating circumstances and plead for milder punishment.
 
A second safeguard is the right of appeal, right upto the Supreme Court. In the Parliament attack case itself, one convict was acquitted on appeal and the sentence of some others was reduced. Afzal was the only one whose death sentence was confirmed when it reached the court of final appeal.
 
Take the Rajiv Gandhi assassination case. The special court sentenced all 26 accused to death and the high court confirmed it. The Supreme Court confirmed death sentence only on four and released the rest as they had already served the sentences. Of the four condemned prisoners, Nalini's life has been spared (for the sake of her daughter) while her husband Murugan, Perarivalan and Santhan are awaiting the President's decision on their clemency petitions.   
 
Such being the elaborate safeguards built into the system, when scope for miscarriage of justice is minimal, clemency, commutation or remission of sentence should be the exception and exercised within a reasonable time frame. Interminable wait in the death row, as Murugan and the other two condemned prisoners are doing since 1999, is an affront to human dignity.
 
In the final analysis, commuting Afzal's death sentence will demoralise the armed forces. A militant in jail is a live bomb as Kandahar has shown when the Government of India had to trade off jailed Jaish e Mohammed founder Maulana Masoor Azad for the lives of hijacked Indian Airlines passengers.
 
The argument whether capital punishment is necessary at all was not raised when lesser mortal Dhananjoy Chatterjee was hanged for raping and murdering a minor girl. The issue can certainly be revisited, but not to save Afzal from the gallows.