On November 3, 2022, a three-member bench of the Supreme Court reconfirmed its earlier decision of upholding Mohammad Arif’s death penalty. Accused in the Red Fort attack case of December 2000, Arif has, till now, spent nearly 22 years behind bars. The first seven years were spent awaiting the sessions court judgment (2005) and for the confirmation of the death sentence by the High Court in 2007. Subsequently, in 2011, the Supreme Court upheld the punishment. Over the last ten years and more, different benches of the apex court have deliberated and rejected Arif’s review and curative petitions (2012, 2013), admitted and accepted his petition for an open bench review (2014), agreed to such a hearing (2016), and reconfirmed the punishment (2022).

Despite the limited brief of the present judgment, PUDR believes that the long judicial saga prior to this reconfirmation is a source of injustice and unfairness for the following reasons:

1. Outside of the infirmities, fallacies and inconsistencies evident in the trial court judgement which have been documented and critiqued by PUDR, the question of Arif’s long and lonely struggle between death and life, since he was first awarded death penalty in 2005 by the session’s court  raises an obvious question, that of delay.  In 2014, in a landmark judgment, the Supreme Court acknowledged that inordinate delay in disposing off the mercy petition by the President can and should form the basis for commutation of death penalty. But by not recognizing delay caused by judicial proceedings, the courts have absolved themselves from addressing the injustice that death penalty convicts suffer behind bars. Arif’s case underlines that delay arising from the workings of the judicial machinery must be recognized, and that such cases should be considered for commutation.
2. The present judgment has upheld the state’s view that “when there is a challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances.” While courts have persistently upheld capital punishments for terror crimes, this position runs counter to the recent judicial recognition of commuting death sentences to life, to lifelong imprisonment or fixed terms of longer durations without remission. Clearly, the exceptionality of terror crimes overrides judicial reasoning applicable in commutation cases. Yet, even this position of upholding death penalty for terror crimes is not uniform as the apex court paved the way for Perarivalan’s release in May 2021. Equally, the commutation of Devinder Singh Bhullar’s death sentence in 2014 is important as it shows that the significance of life over death in terror cases. Given these judicial precedents, the present decision to uphold Arif’s death sentence, 22 years after he was arrested and incarcerated, is unfortunate and unfair.
3. The present judgment rejects Arif’s plea for “rehabilitation” by quoting from its earlier judgment of 2011 wherein it is stated that “this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India.” The key word here is ‘foreigners’. Since Arif is a Pakistani national, there is little concern about the fate of such a person within the Indian criminal justice system.  Importantly, Article 21 of the Constitution, the right to life, is not restricted to Indian nationals. However, since multiple courts have deemed Arif as an enemy alien, they have also effectively denied him the possibility of such a right. In this way, Arif has apparently become both dispensable and a supreme example of one who deserves the gallows. What has been overlooked is the fact that more than a stellar case of an enemy alien conspiring against Mother India, Arif is an ignominious example of a forgotten prisoner languishing for over two decades under impending death penalty. He deserves justice and not the fate of hanging to death.
4. Arif, was punished under IPC and not under special anti-terror law; but then, as noted in the PUDR report, once a person is charged for “waging war, there is a willing suspension of disbelief within the judiciary, and the trial court in particular.” In conclusion, the report expressed the hope that the “higher judiciary would eventually rectify the mistakes” and that it would recognize the suffering of “pain and ignominy of being accused and put through the grind that Indian criminal justice system has come to represent”. It is a hope that has been belied but not forgotten.

Sending Arif to the gallows will serve no ethical purpose other than confirm the vengeful nature of our criminal justice system. PUDR demands the commutation of Arif’s death sentence, and it demands the abolition of death penalty.

Deepika Tandon and Shahan Bhattacharya

Secretaries, PUDR