Kasab, buried with rights

Madabhushi Sridhar wrote a interesting piece in the Hindu on 23 Nov 2012 on the constitutional impropriety involved in the execution of Ajmal Kasab. Post series of judicial decisions, judicial review of the exercise of power of pardon is established in India. (See, Kehar Singh, Maru Ram, Dhanajoy Chatterjee and Epuru Sudhakar to mention few important decisions.)

The position of law on review of order by the President or the Governor under Articles 72 or 161 respectively is clear and in the positive. In Epuru Sudhakar, the court also summarise the grounds as follows

(a) that the order has been passed without application of mind

(b) that the order is mala fide

(c) that the order has been passed on extraneous or wholly irrelevant

considerations

(d) that relevant materials have been kept out of consideration

(e) that the order suffers from arbitrariness

Kasab therefore had the right to invoke the review power of the court of the order rejecting his mercy petition. A decision on that application would have sealed his fate. 

From the available news reports it is not clear whether he was aware of this opportunity and also the reasons to reject the petition by the President. There has also been debate as to whether the order rejecting mercy petitions has to be reasoned and courts have given contrary signals on this issues. Having said that, a reasoned order becomes imperative to exercise judicial review meaningfully. (See S. R Bommai)