NATIONAL

Releasing Rajiv case convicts will set a bad example: Centre

Ministry order on Kovind’s behalf cites ‘diabolical plot’

The Centre has said releasing the four foreign nationals convicted of the assassination of former Prime Minister Rajiv Gandhi, in connivance with three Indian nationals, “will set a very dangerous precedent and lead to international ramifications.”

In its communication to the Tamil Nadu government, rejecting its request for concurrence to its proposal to grant remission to the seven life convicts in the case, the government said “...the murder of a former Prime Minister, for what he did for the country was an act of exceptional depravity on the part of the accused, an unparalleled act in the annals of crimes committed in this country.”

The Hindu reported on June 15 that the T.N. government’s plea to release the seven convicts had been turned down by the President. The order issued by the Union Home Ministry on behalf of the President, said the “diabolical plot carefully conceived and executed” by a foreign terrorist organisation claimed 16 lives, including nine police officers.

It said the killing brought the democratic process to a halt. “The trial court had given cogent reasons for imposing the death penalty upon the accused persons. While referring to the diabolical conspiracy, the use of a female human bomb, the number of lives lost in the incident etc. it justified the award of the death penalty; the three judges of the Supreme Court highlighted the conspiracy and the horrific nature of the crime and held that the case fell under the category of rarest of rare cases,” the Ministry said.

On February 14, following SC directions, the Ministry sought details on eight grounds from the State government, including “physical and mental status of the convicts”, their “economic and social background” to “facilitate” its request to release them. The seven convicts are V. Sriharan alias Murugan, A.G. Perarivalan, Santhan, Jayakumar, Robert Payas, Ravichandran and Nalini.

the difference between the terms "commutation," "reprieve," and "remission" of sentences in the context of the Indian judiciary.

The terms COMMUTATION, REPRIEVE, & REMISSION are related to the pardoning power of the President.

PARDONING POWER OF THE PRESIDENT

Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:

1. Punishment or sentence is for an offence against a Union Law;
2. Punishment or sentence is y a court martial (military court); and
3. Sentence is a sentence of death.

The pardoning power of the President is independent of the Judiciary; it is an executive power. But, the President while exercising this power, does not sit as a court of appeal. The object of conferring this power on the President is two-fold: (a) to keep the door open for correcting any judicial errors in the operation of law; and, (b) to afford relief from a sentence, which the President regards as unduly harsh.

The pardoning power of the President includes the following:

1. Pardon It removes both the sentence and the conviction and completely absolves the convict from all the sentences, punishments and disqualifications.
2. Commutation It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
3. Remission It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
4. Respite It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of convict or the pregnancy of a woman offender.
5. Reprieve It implies a stay of the execution of a sentence (especially that of death) for a temporary period. its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Under Article 161 of the Constitution, the governor of the state also possesses the pardoning power. Hence, the governor can also grant pardons., reprieves, respites, and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against a state law. But, the pardoning power of the governor differs from that of the President in the following two respects:

1. The President can pardon sentences inflicted by court martial while the governor cannot;
2. The President can pardon death sentence while governor cannot. Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor. However, the governor can suspend, remit, or commute a death sentence. In other words, both the Governor and the President have concurrent power in respect of suspension, remission and commutation of death sentence.

The Supreme Court examined the pardoning power of the President under different cases and laid down the following principles:

1. The petitioner for mercy has no right to an oral hearing by the President.
2. The President can examine the evidence afresh and take a view different from the view taken by the court.
3. The power is to be exercised by the President on the advise of the union cabinet.
4. The President is not bound to give reasons for his order.
5. The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
6. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.
7. The exercise of power by the President is not subject to judicial review except where the presidential decision is arbitrary, irrational, mala fide*or discriminatory.
8. Where the earlier petition for mercy has been rejected by the President, stay cannot be obtained by filing another petition.

*Mala Fide( ದುರುದ್ದೇಶದಿಂದ ಕೂಡಿದ ):- in bad faith; with intent to deceive.

Kin, neighbours spur youth to join militancy

Hizbul Mujahideen was the biggest recruiter of militants in Jammu and Kashmir in 2017. (Representational image)  

Reports point to crucial role of friends and social media rather than IS or religious ideology

When Hizbul Mujahideen militant Rauf Khanday, 21, from a village in Anantnag was killed in March 2018, thousands attended his funeral, and the footage was streamed across social media in Kashmir.

Amongst those watching was Zubair Ahmad Wani, who lived just a kilometre away from Khanday’s home, and had known him well. Wani, an M.Phil student in political science at a university in Madhya Pradesh, said not a word at the funeral, according to his family. But three weeks later, Wani, who was not known to have expressed a desire for militancy ever before, took up the gun.

Changing profile

The cases of both Khanday, who, too, had given no inkling that he would join militancy, and Wani are evidence in studies that show that extremist ideology and pan-Islamic discourse have much less to do with the recruitment of militants in the latest round of violence in Jammu and Kashmir. The studies found that only 2% of the militants had ever studied at a madrassa or religious school.

Instead, local factors like geography, involvement of friends, family and neighbours, and social media shares amongst close groups have had a much higher role to play in motivating these men, mostly in their 20s to become militants and terrorists.

Officials say that despite a year-on-year escalation in the numbers of militants in Jammu-Kashmir, a series of official reports by Jammu and Kashmir police, and at least one by a notable international think-tank have found that pan-Islamic, Wahhabi or Salafi Islam and Islamic State ideology have had a negligible impact amongst those taking up the gun.

The results were put out by security agencies in the State, and considered important during the Central government’s decision to extend a “Cease-Ops” to the Kashmir valley in an effort to break the cycle of violence caused by connections such as the one between Khanday and Wani, to create more militants.

The results were put out by security agencies in the state, and considered important during the Central government’s decision to extend a “Cease-Ops” to the Kashmir valley in an effort to break the cycle of violence caused by connections such as the one between Khanday and Wani, to create more militants.

156 case studies

Their studies analysed about 156 militants recruited between 2010-2015 (Radicalisation and Terrorism in J&K), and two studies of the situation since 2016 when terrorist Burhan Wani was killed, and about 265 militant recruits unleashed a new wave of violence in the valley (Analysis of recruitment by terrorist groups and Recruitment v/s Militant killings).

The studies found that only 2% of the militants had ever studied at a madrassa or religious school, and amongst the largest militant group Hizbul Mujahideen, which is considered a “local Kashmiri group” as opposed to Pakistan-based Lashkar e Toiba and Jaish e Mohammad, as much as 64% of the recruits had not indicated strong religious inclinations before becoming militants. Only 3% of those surveyed through interrogations or questions put to their friends and families had identified themselves as “Salafist” or “Wahabbi” the more radical ideologies followed by pan-Islamic terror groups like Al-Qaeda and Islamic State.

Middle-class roots

“The new age militant comes from a middle class family with all the ingredients of a normal Kashmiri family. This militant who is the new poster boy of radicalisation wave is quite interestingly from the Hanafite family background with [only a] medium percentage ideologically inclined towards the puritan/revivalist version of Islam like Salafi, Jamaat- e- Islami etc. and his parents sharing cordial relationship, debunking the notion that this militant is child of broken family,” one of the reports concluded.

The studies found that nearly half (47%) of the militants recruited in the last two years lived in a radius of 10 kilometres of a militant who had been killed, and an additional one third (35%) lived within 20 kilometres of the militant’s home, raising a high probability that the recruit knew the militant personally, or knew someone who did. In addition the earlier studies had found that 95% of the recruits had shown strong “bonding” with their neighbours, 80% were very close to classmates and 81% of the recruits lived in an area, which had the presence of local militants.

“This is the exact opposite of the profile of the radicalized international terrorist we have seen,” explains a senior official working on the issue, who asked not to be identified. “All studies of ISIS and Al Qaeda recruits abroad found that the radicalized individual will give up their family, will move into the company of other terrorists and people online who share their values etc., and increasingly would justify the killing of innocents by speaking of their own death and the afterlife. None of these fit with the studies [in Jammu and Kashmir].”

Marginal presence

As a result, despite a few instances of ISIS flags being used at militant funerals, and the ISIS mouthpiece claiming credit for the killing of a policeman on the outskirts of Srinagar in February this year, officials estimate that the Islamic State-J&K and Al-Qaeda-motivated Ansar Ghazwat-ul-Hind have cadres in the single digits at present, and have not increased their numbers in the last year.

“Obviously, we can never discount the potential of such groups to radicalise youth in Jammu and Kashmir, but statistically, what we have seen is that peer pressure, neighbourhood influence, social sanction and romanticised notions of heroism are much more responsible for militant recruitment, than any religious ideology,” Inspector General of Kashmir S.P. Wani told The Hindu, adding that compared to the rest of India, where about 104 Indians had joined ISIS in Syria and Iraq, only 2 from Kashmir had joined the brutally violent movement, and neither Kashmiri had been directly recruited. Even the figures of all Indians who had travelled to join ISIS are meager, given that only 47 went to Syria directly from India from a total Muslim population of 174 million.

Significantly, the studies in the Kashmir and for the rest of India have been backed by a new international study, that has found a very negligible presence of “cluster points” that denote online activity related to ISIS today. The study, called “Spiders of the Caliphate” which maps the Islamic State’s Global Support Network, was published in May 2018 by two British authors for the “Counter Extremism Project”. It found that while the ISIS network still exists on online networking sites like Facebook, “cluster maps” of South Asia found only one Indian ISIS supporter connected to ISIS communities in Afghanistan and Bangladesh, making India a “circuit breaker” in the region. The report mentions the ISIS claims in Jammu and Kashmir, but doesn’t find support for it on the ground.

“The South Asia data confirms the long-standing belief that India’s Muslim population is largely resistant to both al-Qaeda and IS recruitment. This large geographic gap in the IS online network helps to separate the Afghan [Pakistan] and Bangladeshi networks,” the report concludes, adding that India would require to remain vigilant along its borders which were frontiers of the “virtual caliphate”.

“What is most interesting is the fact that in this matter, the pan-Islamic radicalisation in Jammu and Kashmir has not been very different from the rest of India, unlike what is seen directly across the LoC and Border” the senior official said, indicating that even Pakistan’s influence over the current wave of militancy may be limited.