President Pranab Mukherjee’s decision to reject the mercy petition
submitted by the lone convict in the 26/11 Mumbai terror attack, Mohammed Ajmal
Amir Kasab, is an instance of how public perceptions about a convict’s guilt
can camouflage the government’s duty to explain the decision. The President’s
decision is shrouded in secrecy, throwing little light on the principles which
guided it.
Under
Section 4(1) (d) of the Right to Information Act, every public authority shall
provide reasons for its administrative or quasi-judicial decisions to affected
persons. This provision has no exemptions. The government erroneously denies
information to RTI applicants seeking reasons for its mercy decisions, taking
shelter under Article 74 (2) which only bars inquiries by courts into
Ministers’ advice to the President.
Significant
The reasons for rejecting a mercy
petition are significant, not only from the point of view of the convict who
has sent it, but for other convicts who may use them as precedents while
drafting their own.
Non-speaking rejections
render the object of the President’s mercy power in a democracy meaningless,
and its exercise arbitrary. They only leave the field open to uninformed commentary in the media
about the President’s record in disposing of mercy petitions.
There was much misconceived criticism in
the media of the former President, Pratibha Patil’s commutation of death
penalties of 35 prisoners during her term forcing her to come out with a press
release, while in office, in her defence.
Article 72 of the Constitution which
enables the President to grant pardons, etc., and to suspend, remit or commute
sentences has its parallel provision in Article 161 which enables the
Governor to exercise similar powers with regard to matters to which the
executive power of the State extends. The President or the Governor acts on the
aid and advice of the Council of Ministers, while exercising the powers under
these provisions. Unlike the Governor, however, the President may require the
Council of Ministers to reconsider such advice, and the President shall act in
accordance with the advice tendered after such reconsideration.
Scholar Bikram Jeet Batra has found that
India’s first two Presidents, Rajendra Prasad and Radhakrishnan, stretched the
limited powers available under the Constitution, and tried to assert their
moral authority over the executive, by persuading it to reconsider its initial
advice to reject mercy petitions in several cases.
Their successors — with the exception of
R. Venkataraman and S.D. Sharma — by and large followed this legacy. Implicit
in this legacy is the valid assumption that the pardon power can be exercised
if there are compassionate grounds which may favour the convict, whatever the
horrible nature of the crime found to have been committed. A corollary of this
assumption is that the Supreme Court’s findings which resulted in the
conviction and sentencing of the appellant convict would hardly matter to the
President, if the compassionate grounds are sufficient to accept a mercy
petition. The President and the executive sometimes differ on this, and the
resolution of this difference often takes time.
When it appeared that the executive was
not likely to revise its initial advice to the President, the Presidents used
the option to delay the rejection of a petition as long as they could, even by
not acting on it till the completion of their tenures. Presidents
K.R. Narayanan, Abdul Kalam, and Pratibha Patil used this option, as the
Constitution does not impose any time limit for the President within which a
mercy petition must be disposed of. Silences in the Constitution
also convey significant messages, and an unstated discretion to the President,
when he or she disagrees with the advice tendered by the government, to delay
the decision can be easily inferred.
Experience shows that successive Presidents
stand vindicated by their pursuit of this legacy. Most of the 35 commutations
decided by Ms Patil were part of the backlog left by Mr. Narayanan and Mr.
Kalam. In many cases, the Ministry of Home Affairs (MHA), acting on behalf of
the Council of Ministers, had initially advised the President to reject the
petition. However, when the President asked the successor government and a new
Home Minister to reconsider the earlier advice, it resulted in commutation.
Sometimes, even after the President
rejected a mercy petition, hanging of the convict was stopped, on the basis of
a fresh mercy petition, which was later accepted by the same President or his
successor.
Case of Parmatma Saran
The earliest example of this is that of
Parmatma Saran, whose mercy petition file is preserved in the National
Archives. Saran’s was a unique case in the entire history of mercy petitions in
India. The Supreme Court, like the courts below it, found him guilty of killing
his wife by burning her, and did not find any mitigating factor in his favour.
The Home Ministry first concurred with the Court, and President Rajendra Prasad
rejected his mercy petition on January 10, 1962, on the basis of the Ministry’s
advice.
However, before Saran could be executed,
the MHA received a fresh mercy plea from Saran’s father-in-law in the interest
of his five-year old grandson, born out of his deceased daughter’s marriage
with Saran. This tilted the views of both the Home Ministry and the President
in favour of commutation, as they found it rare that a victim’s relative
could plead for mercy.
The commutation of the death sentence of
R. Govindasamy to life imprisonment offers a dramatic example of how a
flip-flop can happen after the President duly rejects a mercy petition.
President Narayanan rejected his mercy petition, on the basis of the then NDA
government’s advice, in October 1999. The same NDA government, however, stayed
his execution, following various appeals from Tamil Nadu favouring commutation
of his sentence. Govindasamy was the first convict to get relief from Ms Patil,
who commuted his death sentence to life imprisonment on November 18, 2009
following the receipt of a fresh mercy petition. Satish was another recent
case. The former Home Minister, Shivraj Patil, had recommended rejection of his
mercy petition to the President in July 2008. But Ms Patil, on the basis of a
fresh advice from Shivraj Patil’s successor, P. Chidambaram, commuted Satish’s
death sentence to life imprisonment on May 8 this year.
Ms Patil left the mercy petitions of 16
convicts undecided. This suggests that she might have disagreed with the
government’s advice to reject the mercy petitions of these convicts. One of
these is that of Saibanna, who the Supreme Court
admitted it had erroneously sentenced to death, by following a wrong legal
precedent.
The Supreme Court admitted
similar error while sentencing to death 12 other convicts. Fourteen former
judges have, in a recent appeal to the President, justified the commutation of
the death sentences of these 13 convicts, to life imprisonments.
Of these, five have already got their
death sentences commuted to life sentences by the Governor or the President.
The President will, hopefully, examine mercy pleas of the remaining eight, in
the light of the former judges’ appeal.
The last hanging in India was that of
Dhananjoy Chatterjee in 2004. Batra has found from MHA files under the RTI Act
that the briefs prepared for President Kalam provided an inaccurate and
incomplete view of the 10-year delay in his execution, ignoring official
negligence. He suggests that a reasoned and transparent decision could have
made it easy for the Supreme Court to intervene on the ground that relevant
material was not placed before the President, before executing Chatterjee.
President Pranab Mukherjee missed an
excellent opportunity to contribute to the rule of law, by not publicly
disclosing the reasons for his decision on Kasab. Every death row convict has
an inherent right under Article 21 — even if so far untested by the Courts — to
be apprised of the reasons for the rejection of his mercy petition, which would
deprive him of his life. Others are entitled to know the reasons as well under
the RTI Act.
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