Strengthening its stand on capital punishment for death row convicts, the Union Home Ministry has communicated to the Ministry of Law that the President’s verdict should be considered final after the legal procedure is completed. The Modi Government also conveyed that the President’s decision cannot be challenged in the court. In its affidavit, the Ministry of Home Affairs has taken the view that the President is the sovereign authority and once the President exercises the constitutional powers vested in him under Article 72 and rejects a mercy petition, the court only has limited powers for judicial review.
It also submitted that commuting death sentences sends out a negative message on terror related cases and heinous crimes. As regards the delay in deciding mercy petitions being cited as a reason by the court, it was contended that since there is no time frame set for the President to decide on a mercy plea, there is no question of such delay.
The Law Ministry is reportedly gearing up to file curative petitions on behalf of the Central Government against Supreme Court orders commuting death sentences of at least 15 convicts.
It is also planning to file a petition against commutation of death penalties awarded to former Prime Minister Rajiv Gandhi’s killers to life terms citing an 11-year delay.
Supreme Court in April had refused to review its judgment commuting the death sentence of three convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, into life imprisonment. A three Judge bench comprising of Chief Justice P. Sathasivam, Justice RanjanGogoi and Justice Shiva Kirti Singh passed the short order dismissing the Review Petition holding that there is no merit in the petition.
The Bench had already rejected the review petition filed by the Centre against the January 21 verdict commuting the death sentence of 15 convicts, including some of the associates of forest brigand Veerappan. The convicts in the Rajiv Gandhi assassination case were granted pardon applying the principles enunciated in the January 21 verdict.
Pardoning power is a Supreme show of authority bestowed over the President and the Governor through the Constitution of India. Under Article 72 of the Indian Constitution the Indian President is empowered to grant pardon, he can reprieve, respite or remit the punishment.
The question of judicial review over pardoning power of the President has been considered by the courts in several cases. In Kehar Singh Vs. Union of India, the Supreme Court held that, "It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assist by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme. The order of the President cannot be subjected to judicial review on its merit"
More recently, it was considered in the case of Epuru Sudhakar & Anr. Vs Govt. of A.P. & Ors. In this case, the Supreme Court set aside a decision of then Andhra Pradesh Governor Sushil Kumar Shinde, remitted the sentence of a Congress activist who faced ten years in prison in connection with the killing of two persons including a TDP activist.
“Rule of Law is the basis for evaluation of all decisions (by the court)... That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent,” the bench comprising of Justice S.H. Kapadia and Justice Arijit Pasayat warned.
Justice Kapadia, while concurring with the main ruling delivered by Justice Pasayat, sought to remind “exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty... the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”
“An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are fraught with discrimination,” he said. Thus this judgment reiterated the settled position of law that exercise or non-exercise of the pardoning power by the President or Governor is open to judicial review.
However, more recently in April, the Centre told the Supreme Court that Courts should not inquire into a decision of the President’s Pardoning Power, saying that it is beyond the light of any question. In an affidavit filed in the Supreme Court Centre said that the power to grant clemency is an attribute of sovereignty and Court ought not to inquire into the merits of the exercise of the prerogative.
Affidavit was filed as a response in compliance with the Supreme Court’s Order dated November 18 2013. A Bench comprising Justices Ranjana P Desai and Ranjan Gogoi and headed by Chief Justice of India P Sathasivam issued a notice to it on a PIL challenging former President Pratibha Patil’s decision to commute death sentence of five condemned prisoners in child rape cases. Read the Live Law Report here.