Source: Indian Express

Introduction

The 2000 terrorist attack on the Red Fort by militant group ignited a protracted legal battle, encompassing investigations, trials, and numerous appeals challenging the capital punishment imposed, the convicted mastermind behind the assault in the case of Mohd. Arif @ Ashfaq v. State (NCT Of Delhi) (2022).

The President's decision on 27^th May 2024, arrived after convict's unsuccessful attempts to secure reprieve from the Delhi High Court and the Supreme Court, challenging the trial court's verdict in October 2005. Arif retains the option to contest the President's ruling, potentially prolonging the legal proceedings further.

What Happened During the 2000 Red Fort Attack in Delhi and the Subsequent Investigation and Trial?

• On 22^nd December 2000, two terrorists attacked the Red Fort in Delhi, killing two Army jawans and a civilian security guard before escaping.
• Investigators found abandoned assault rifles, detonators with Urdu tags, a polythene bag with cash, and a slip with a mobile phone number outside the Red Fort.
• The mobile number led to the arrest of the convict and his wife on 26^th December, 2000.
• Based on convict information, another terrorist was killed in an encounter at Batla House, Okhla, and one more militant, was killed in an encounter in Srinagar.
• On 20^th February 2001, Delhi Police filed a charge sheet against convit and 21 others, followed by a supplementary chargesheet on March 25, 2001.
• The trial of 11 accused began on 11^th September, 2001, and the prosecution examined 235 witnesses over the next three years.
• On 14^th October, 2005, the trial court reserved its judgment, and 31st October, 2005, it found seven of the accused guilty, sentencing convict to death.

What are the legal proceedings and appeals in the Red Fort attack case involving Arif?

• In 2007, the Delhi High Court confirmed the trial court's decision to sentence convict to death for the 2000 Red Fort attack.
• He appealed to the Supreme Court, which rejected his appeal on 10^th August 2011, calling the attack an "undeclared war by some foreign mercenaries".
• He filed a review petition against the death sentence in 2012, which was rejected. His subsequent curative petition was also rejected in January 2014.
• In 2014, Convict filed another writ petition, arguing that death sentence cases should be heard by a bench of at least three judges. A five-judge Constitution Bench agreed with his argument.
• The case was then placed before a three-judge bench led by former Chief Justice U.U. Lalit.
• On 3^rd November 2022, nearly 22 years after the attack, the three-judge bench rejected convict plea, finding that "there was a direct attack on the unity, integrity and sovereignty of India."
• President of India received convict's mercy petition on 15^th May 2024.

What is the Recent Development in the Arif Case?

• The Supreme Court has held that the President's power to reject a mercy petition must be exercised based on the aid and advice of the Council of Ministers.
• The President's decision to reject a mercy petition can be challenged on multiple grounds, including:
  • Relevant material was not considered
  • The power was exercised based on political considerations
  • There was no application of mind
• In the 2014 case of Shatrugan Chauhan v. State of UP (2014), the Supreme Court commuted the death sentence due to inordinate delay in deciding the mercy petition.
• In April 2023, the Supreme Court in matter of Renuka & Anr. v. Union of India & Ors. (2014) declined to interfere with an order of the Bombay High Court, which commuted the death sentence awarded to a woman and her sister on grounds of inordinate delay in deciding their mercy petitions.
• Convict has the option of challenging the President's rejection of his mercy petition, potentially citing the precedents set by the Supreme Court in cases of inordinate delay in deciding mercy petitions.

What are the Legal provisions Related to Mercy Petition in Indian ?

• Constitutional Provisions:
  • Article 72 of the Constitution of India, 1950 (COI) empowers the President of India to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of any offense.
  • Article 161of COI confers a similar power on the Governors of States to grant pardons, etc., in cases where the punishment or sentence is by a Court Martial.
• Code of Criminal Procedure, 1973 (CrPC):
  • Section 432 allows the appropriate Government (Central or State) to suspend or remit sentences in certain cases.
  • Section 433 deals with the power to commute sentences.
  • Section 434 provides for the concurrent power of the President and Governors to suspend or remit sentences in certain cases.
• Supreme Court Guidelines:
  • The Supreme Court in Bachan Singh v. State of Punjab (1980) upheld the death penalty but ruled it should be awarded only in the "rarest of rare" cases after considering all mitigating circumstances. This "rarest of rare" doctrine has been consistently reiterated by the Court as a crucial guardrail for judicious application of capital punishment.
  • In Epuru Sudhakar & Anr vs Govt. of A.P. & Ors (2006), the Supreme Court laid down guidelines for dealing with mercy petitions, including time limits for various stages.
  • In Shatrughan Chauhan & Anr v. Union of India & Ors (2014), the Court ruled that there must be a mandatory gap of 14 days between the rejection of a mercy petition and execution.
• 262^nd Law Commission published in 2015
  • The Report of the 262nd Law Commission published in 2015 recommended the “absolute abolition” of the death penalty “for all crimes other than terrorism related offences and waging war”.

Conclusion

The convict case related to the 2000 Red Fort attack has a complex legal journey over two decades, with Arif exhausting multiple appeals against his death sentence up to the Supreme Court level. While the apex court had provided guidelines on mercy petitions and the "rarest of rare" doctrine for capital punishment, the recently enacted BNSS has made the President's decision on mercy pleas binding and non-reviewable by courts. Despite this, the convict retains the option to legally challenge the President's rejection of his mercy petition, potentially prolonging the proceedings even further in this long-drawn case.