President Rejects Mercy Petitions Of Five Death-Row Convicts In Two Days

President Pranab Mukherjee rejected mercy petitions from five death-row convicts, on May 25 and 26. These are perhaps his last disposal of mercy petitions, before his term expires on July 24. With these, he has rejected mercy petitions of 41 death-row convicts, whereas he has commuted the death sentences of only seven, to life imprisonment.

On May 25, he rejected the mercy petitions of Jitendra @ Jeetu, Babu @ Ketan, and Sanni @ Devendra. The Supreme Court dismissed their appeals against their death sentences, confirmed earlier by the High Court of Madhya Pradesh (Indore Bench), on January 6, 2015 in limine, through an order pronounced by the bench of the then Chief Justice H.L. Dattu, and Justices A.K.Sikri and R.K.Agrawal.

The order just carried three words: “Delay condoned. Dismissed”. The Supreme Court, while hearing the landmark Shatrughan Chauhan case, had decried the practice of in limine dismissals by the Supreme Court of appeals by death-row convicts.

According to the Death Penalty India Report Volume 1 published by the National Law University, Delhi, last year, there have been nine in limine dismissals of SLPs filed by the death-row convicts in the Supreme Court since 2004. The bench, which dismissed Jitendra, Babu and Sanni’s SLPs in January 2015 also dismissed in limine, another SLP filed by Babasaheb Maruti Kamble, in the same month.

In limine dismissals, because they lack reasoning, are legally indefensible, and the death-row convicts have a fair chance of getting their appeals reheard by the Supreme Court on this ground.

Interestingly, the review petition filed by Jitendra @ Jeetu and other convicts, is yet to be heard by a three-Judge bench in open court as mandated by the Supreme Court’s Constitution bench in Mohd. Arif case. It was last listed before Justice Kurian Joseph in Chambers on October 5, 2015, when he directed that the applicants in the case shall also be heard when the Review Petition is heard in the open Court.

In their Judgment, Justices S.K.Seth and P.K.Jaiswal of the Indore Bench of the Madhya Pradesh High Court, (authored by Justice Seth), had held that the accused, by their extremely depraved and demonic acts against an infant of three or four years, hae forfeited the right to be treated softly or lightly. “So long as the death sentence remains on the statute book, it would, in our opinion, be a travesty of justice to award the lesser sentence of life to the accused”, the bench had observed.

According to the High Court, the prosecution has made out two very important circumstances against the accused. They are the DNA report and the seizure of documents from the spot per seizure Memo. “These two circumstances by themselves in our opinion, build a chain of circumstances leading to the one and only conclusion of the involvement of all the three accused persons before us”, the bench had held.

Last rejection

The President rejected the mercy pleas of Purushottam Dashrath Borate and Pradeep Yeshwant Kokade, on May 26. Their appeals against the death sentences were dismissed by the Supreme Court’s three-judge bench on May 8, 2015. The judgment was authored by the then Chief Justice, Dattu, on behalf of himself and justices S.A.Bobde and Arun Mishra.

The two accused in this case were found guilty of sexually abusing and killing a BPO employee, on her way to work in Pune, in 2007. The accused were part of a private cab service, hired by the deceased’s employer to pick up employees from their homes, and drop them, after their work shifts were over.

The Supreme Court confined the hearing of their appeals to only the issue of sentence.

The bench observed that in a case where the accused does not act on provocation or on the spur of the moment, but meticulously executes a deliberate, cold-blooded and pre-planned crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by our criminal jurisprudence would tilt heavily towards the death sentence. The incident, the bench held, shocked and repulsed the collective conscience of the community and the court. As a result, the bench found no mitigating factor in favour of commutation of their death sentences to life imprisonment.

Mercy Petitions

Whatever the findings of the Courts, the President is expected to apply his mind independently while exercising his powers under Article 72 of the Constitution.

Eminent scholar and statesman, Gopalkrishna Gandhi, observed in his book, Abolishing the Death Penalty, (Aleph, 2016) as follows: “The president is bound by the Government’s advice, but the subject –the life and death of an Indian citizen –makes it possible for the President, and I would say incumbent on the President to go into each such case with a magnifying glass. And this not just to spot loopholes of fact, but also to see the crime against the light of circumstances, and contexts that lie beyond purely legal facts and legal interpretations” (pages 47-48).

Gopalkrishna Gandh, further observed: “Presidential inclinations cannot form the final gradient to the gallows. A mercy petition cannot be at the mercy of one man’s temperament, albeit filtered by governmental advice. That is valuationally abhorrent in a democratic republic governed by the rule of law.”

He continues: “In the provisions of Article 72 lie a certain philosophy, inadequately explained, that requires the executive study of a mercy petition to be trans-judicial, but not un-judicious, to be a large canvas but not a tabula rasa for presidential expressionism. No man’s life can be left to the mercy of another man’s discretion. Raisina Hill is not the Purana Qila, nor Rashtrapati Bhavan the Red Fort.” These are indeed strong words.