President Droupadi Murmu recently rejected the mercy petition of Pakistani terrorist Arif Mohammed, who was convicted and sentenced to death after being found guilty in the 2000 Red Fort attack case. In the 22nd December 2000 attack which involved terrorists opening fire on the 7 Rajputana Rifles regiment stationed inside the Red Fort grounds, three army jawans were killed in action.

While it took 24 long years to bring the Lashkar-e-Taiba (LeT) close to much-deserved punishment, the terrorist and criminal sympathising ‘ecosystem’ suffering from the sinister “every sinner has a future” syndrome might soon start the hue and cry over it.

As if this travesty of justice was not enough that even to punish a Pakistani terrorist who killed innocent people it took over two decades, the LeT terrorist could still petition the Supreme Court under Article 32 of the Constitution to have his sentence commuted on the grounds of inordinate delay.

Arif Mohammed was convicted and sentenced to death by trial court in 2005, and the verdict was upheld by Delhi Court in 2007 and the Supreme Court in 2011. The Supreme Court then rejected a review petition filed by him in 2012 and a curative petition in 2014. In the same year, the apex court ruled that death sentence cases should be heard by three-judge benches. Accordingly, he was allowed to reopen his plea. But in 2022, the Supreme Court rejected his review petition again.

In February 2023, the Tihar Jail wrote to a city court to issue a death warrant against Arif. Soon after that, he filed a mercy petition with the president of India. Therefore, the president took a decision to reject the decision in just over a year. However, this does not bar Arif from approaching the Supreme Court again seeking relief claiming that the President took more time in dispossing his plea.

The precedents set by the cases of Islamic terrorists Ajmal Kasab, Yakub Memon, and Afzal Guru show that ’eminent intellectuals’ and self-proclaimed ‘human rights defenders’ may soon invoke humanity, compassion, and whatnot to ensure that Pakistani terrorist Mohammed Arif breathes even after killing Indian soldiers.

Project 39A and its fixation with protecting death-row convicts

While the so-called ‘eminent intellectuals’ including lawyers, scholars, politicians and actors coming together to sign mercy petitions of terrorists, as was seen in the case of the 26/11 Mumbai attacks terrorist Ajmal Kasab, is widely known, there is an initiative operating with the sole purpose of saving convicted criminals from the death penalty. Project 39A, which is an initiative of the National Law University Delhi has been working to protect death-row convicts.

Interestingly, Project39A has lamented the rejection of terrorist Arif Mohammed’s mercy plea by President Murmu and highlighted how this is the second mercy plea declined by President Murmu.

“The mercy petition of Mohd Arif has been rejected by the President. This is President Murmu’s 2nd mercy rejection during her tenure; Vasanta Dupare’s mercy plea was rejected in April 2023. While Ram Nath Kovind rejected 6/6, and Pranab Mukherjee rejected 30/34, three Presidents before that – Pratibha Patil, APJ Abdul Kalam and KR Narayanan – were far more reluctant to reject mercy petitions. Narayanan did not reject a single mercy petition,” Project39A posted on X.

While Ram Nath Kovind rejected 6/6, and Pranab Mukherjee rejected 30/34, three Presidents before that – Pratibha Patil, APJ Abdul Kalam and KR Narayanan – were far more reluctant to reject mercy petitions. Narayanan did not reject a single mercy petition.

— Project 39A, National Law University, Delhi (@P39A_nlud) June 13, 2024

Notably, Project 39A has in the past used one of LeT terrorist Mohammed Arif’s mercy petitions to rescue death-row convicts. In its report titled: Death Penalty and the Indian Supreme Court (2007-2021), Project39A said that 13 cases were reopened and re-heard after the 2014 judgment on writ petitions filed by Arif, Yakub Memon and some other death row convicts.

Although Arif’s plea was rejected, the Supreme Court’s 2014 ruling on the Lashkar terrorist’s petition had directed oral hearings in open court for review petitions pertaining to death penalty cases; as a result, several review petitions were reheard, several death sentences were commuted, and six prisoners were acquitted in one case.

Project 39A used Mohammed Arif’s review plea to save death row convicts. There was one such case pertaining to Narayan Chetanram Chaudhary who was accused of the gruesome murders of six members of the Rathi family and their maid in 1994. He was given the death penalty in February 1998 but was released in March 2023 after the Supreme Court determined he was only 12 years old at the time of the crime. In July 1999, the Bombay High Court confirmed his guilt and the death penalty. In August 2013, the Supreme Court rejected the petition for the same reason as before: it did not comply with the relevant section of the revised Juvenile Justice Act.

Following the 2014 Supreme Court decision regarding Mohammed Arif’s petition, Project 39A submitted a review petition to reopen Narayan’s case in October 2014. Eventually, Narayan was set free by the Supreme Court after 28 years. Interestingly, just a few months later, Narayan landed back in Yerwada prison over his alleged involvement in a case of smuggling opium from Rajasthan to Pune.

The Delhi NLU’s legal research and advocacy group’s sympathy for convicted criminals and especially for the LeT terrorist Mohammed Arif, it is likely that the group may come up with a campaign to seek sympathy for the LeT terrorist and how he has suffered mental trauma over the years and thus it would not be ‘ethically’ and ‘morally’ right to execute him.

It is worth recalling how back in 2022, Project 39A organised an event wherein Chennai’s Asian College of Journalism invited a convict in the Rajiv Gandhi assassination case, AG Perarivalan for a guest lecture. The lecture was titled: “The denial of justice and a quest unfinished”, which in itself indicated the institution’s intention of painting the criminal as an innocent victim of the Indian state. Back then, Project 39A claimed that Perarivalan was ‘dehumanised’ by the judiciary and the ‘system’. They also claimed that his release was ordered after “grave doubts were cast on his role in the Rajiv Gandhi assassination”. This, however, was not the case, his involvement in the former Prime Minister’s assassination was proven. However, Perarivalan was released on the grounds that he has served 29 years out of 32 years of jail term in solitary confinement.

How Bharatiya Nagarik Suraksha Sanhita will end the scope for seeking ‘mercy’ for terrorists

Notably, under the existing laws, the Pakistani terrorist could still petition the Supreme Court under Article 32 of the Constitution to have his sentence commuted on the grounds of protracted delay despite the President rejecting his plea. There have been some cases wherein the courts overturned or commuted death sentences despite the rejection of mercy petitions by the President. This was seen in the V. Sriharan alias Murugan vs. Union of India (2014).

Currently, the convicts are free to challenge the rejection of a mercy petition by way of a writ in the Supreme Court. The Bhartiya Nagarik Suraksha Sanhita (BNSS), which goes into effect on July 1, 2024, includes a specific provision that prohibits writ petitions disputing the denial of mercy petitions by the President.

Under BNSS Section 472(1), convicts can file mercy petitions within a period of thirty days from the date on which the Superintendent of the jail,—(i) informs him about the dismissal of the appeal, review or special leave to appeal by the Supreme Court; or (ii) informs him about the date of confirmation of the sentence of death by the High Court and the time allowed to file an appeal or special leave in the Supreme Court has expired.

Notably, the BNSS will replace the existing CrPC. BNSS Section 472(7) states that the President’s decisions on mercy petitions are final. Courts cannot question or review the grounds for President’s pardons or commutations.

Interestingly, even before BNSS came into effect the usual players have been vehemently opposing it. In this vein, Supreme Court lawyer Indira Jaising has urged for ‘consensus building’ before implementing the Bharatiya Nagarik Suraksha Sanhita (BNSS), Bharatiya Nyaya Sanhita (BNS), and the Bharatiya Sakshya Adhiniyam (BSA). In her letter to Union Law Minister Arjun Ram Meghwal, Jaising contended that the civil liberties of citizens including freedom of speech, right to assembly, right to associate, and the right to demonstrate can be criminalised under these three codes.

She went on to say that, while substantive criminal law cannot be applied retrospectively, procedural laws such as the BNSS and BSA which will replace the CrPC and the Evidence Act respectively, may be applied to a pending case based on whether or not prejudice will be caused to the accused. 

It is worth recalling how Indira Jaising after CAA was notified in March this year argued that giving voting rights to the persecuted Hindus arriving from the neighbouring Islamic countries would affect the Indian ‘minorities’ because the persecuted Hindus and other non-Muslims who came from Afghanistan, Pakistan and Bangladesh would get voting rights. Jaising also has a history of banned terrorist organization Popular Front of India (PFI) and demanding the release of the 2020 Delhi anti-Hindu riots alleged mastermind Umar Khalid.

It is likely that several opposition parties and their supportive ‘eminent citizens’ may use LeT terrorist Mohammed Arif’s case to oppose the implementation of Bharatiya Nyay Sanhita. The ecosystem notorious for seeking mercy for Ajmal Kasab, Yakub Memon and Afzal Guru may also be reactivated to save the Pakistani terrorist from execution by invoking humanity, compassion, “execute justice not people”, constitution, and probably even ‘idea of India’ even it causes denial of justice to the victims, unnecessary economic and resource burden.