PRESIDENT Pranab Mukherjee’s decision to reject the mercy petition of Mohammad Afzal Guru inevitably raises the question: Who is next in line? Unlike in the case of his immediate predecessors, who, until the completion of their terms, sat on the recommendations of the Ministry of Home Affairs (MHA) to reject mercy petitions, Mukherjee’s official website reveals that there are no pending mercy petitions in his Secretariat as on January 11. However, he rejected the mercy petitions of Afzal Guru and four former aides of the sandalwood smuggler Veerappan without his office updating the website as on February 14.
The President, under the Constitution, can return a recommendation to the government for reconsideration only once; if the government resubmits it then it is binding on the President. However, the President cannot act on the advice of a Home Minister who is no longer in office, especially if the advice is to reject a mercy petition. So when a new Home Minister takes office the President requests the MHA to re-examine the merits of mercy pleas pending in his Secretariat.
Pranab Mukherjee, who assumed the office of President on July 25, 2012, did precisely this when he sent to the MHA 15 mercy pleas left undecided by Pratibha Patil, his immediate predecessor. In all these cases, the advice to the President had been tendered by P. Chidambaram as Home Minister; Sushil Kumar Shinde took charge as Home Minister on August 1, 2012. The cases included the mercy pleas of Afzal Guru and Saibanna, both of which the President rejected on the basis of fresh advice from the MHA.
In the case of Afzal Guru, it can be reasonably inferred that Pratibha Patil, having received the MHA’s recommendation on August 4, 2011, disagreed with the government’s advice to reject it. She preferred not to take a decision on it until her term ended. Pranab Mukherjee sent Afzal Guru’s mercy plea to the MHA on November 15, 2012. Sushil Kumar Shinde reiterated the government’s advice on January 21 this year. The President took just 12 days to comply with the advice, and rejected the petition on February 3.
In the case of Saibanna, Pranab Mukherjee rejected the plea on January 4, two months after he received the MHA’s advice. Saibanna’s petition raises a deeper question than is apparent. On the face of it, the suggestion is that the government rejected it because his crime is a repeat murder. The rejection drew support from the Supreme Court’s judgment in 2005 confirming Saibanna’s death sentence.
The Supreme Court found the verdict in Saibanna “doubtful” in a 2006 judgment. Later, in 2009, it admitted, in Santosh Kumar Bariyar vs State of Maharashtra , that the reasoning in Saibanna effectively made the death sentence mandatory for an offender serving a life sentence, and declared it per incuriam (delivered out of error or ignorance). Saibanna was inconsistent with the Supreme Court’s judgments in Bachan Singh (1980) and Mithu Singh (1983), both delivered by Constitution Benches. In Bachan Singh , the court held that the death penalty was constitutional if the judiciary had the discretion to award life imprisonment as an alternative punishment. In Mithu , the court struck down Section 303 of the Indian Penal Code (IPC), which prescribed the death sentence to be mandatory for life convicts committing murder. Fourteen former judges have sought the President's intervention to commute Saibanna’s sentence for these reasons. The Karnataka High Court stayed his execution until February 25, when it will hear his challenge to the rejection of his plea.
The only commutation of death sentence by Pranab Mukherjee has been that of Atbir Singh. The record shows that in this case the President’s Secretariat received the MHA’s advice on June 19, 2012, when Pratibha Patil had only a few weeks left in office. It is possible that she refrained from acting on it on account of propriety.
The spotlight is now on the mercy petitions filed by 13 death-row convicts. Pratibha Patil left these petitions undecided, probably because the MHA recommended rejection. If this inference is valid, it is imperative that the MHA makes a fresh appraisal of these mercy pleas in the light of the Supreme Court’s admission of error in sentencing many convicts to death. Frontline found that all their death sentences were flawed in some way.
Sushil Kumar Shinde, when he forms his view on these convicts, cannot ignore the latest Supreme Court judgment delivered in Sangeet vs State of Haryana on November 20. In it the court reiterated the principle laid down in Bachan Singh that circumstances of the criminal as well as the crime should be considered by the judges while awarding death sentences.
Sangeet also found the Supreme Court’s judgment in Machhi Singh vs State of Punjab (1983)per incuriam . Machhi Singh sought to compare aggravating circumstances of a crime with the mitigating circumstances relating to the criminal. Bachan Singh resolutely refrained from balancing these two disparate elements because that would lead to arbitrary decisions by a judge. Besides, Machhi Singh sought to standardise crimes under five absolute categories in order to identify the rarest of rare crime deserving the death sentence. These five categories are manner of commission of a murder, motive for commission of murder, anti-social or socially abhorrent nature of crime, magnitude of crime and personality of the victim. These categories enlarge the scope for imposing the death penalty that was restricted greatly by Bachan Singh.
Benefit of the doubt Although it can be argued that Sangeet, delivered by a two-judge Bench, could not overrule Machhi Singh , which was delivered by a three-judge Bench, Frontline’s investigation shows that as a result of Sangeet , each of the 13 convicts referred to has the benefit of the doubt with regard to the correctness of the death sentence awarded to them by the Supreme Court (dates of judgment within parentheses).
1. Gurmeet Singh (28.09.2005): No reasoning found in the judgment that was crime-centric. In the High Court, one of the two judges who first heard his appeal acquitted him, and the third judge, to whom it was referred, sentenced him to death. Such cases of split verdicts even in High Courts have been found eligible for presidential commutation of death sentence.
2. Dharampal (18.3.1999): No reasoning available. The court just observed that the crime cannot but be held to be the rarest of rare.
3-4. Suresh and Ramji (2.3.2001): No reasoning found in the judgment. The High Court judgment, too, is crime-centric and has no legal reasoning on the death sentence awarded.
5. Praveen Kumar (15.10.2003): The trial court judgment relied on Machhi Singh, which went uncorrected both by the High Court and by the Supreme Court.
6. Jaffar Ali (5.4.2004): The Supreme Court dismissed his special leave petition (SLP) challenging the Allahabad High Court’s death sentence without stating reasons. Non-reasoned dismissal of SLP in death-sentence cases is itself sufficient ground for commutation of death sentence.
7-8. Sonia and Sanjeev (15.2.2007): Judgment relies on Machhi Singh.
9. Sundar Singh (16.09.2010): The Supreme Court relies on Machhi Singh.
10-13. Simon, Gnanaprakash, Madaiah and Bilavandra: (former aides of the sandalwood smuggler Veerappan) (29.1.2004): Besides relying on Machhi Singh as legal precedent, the judgment enhanced the life imprisonment awarded by the trial court to the death penalty. Normally, appellate courts do not enhance the punishment awarded by a lower court. The government has considered this factor as a ground for commutation of death sentences before.
News reports confirm that their relatives have been informed about the President’s rejection of their mercy pleas. Yug Mohit Chaudhry, well-known civil liberties lawyer in Mumbai, had this to say about the rejection of their petitions: “The trial court gave the prisoners life imprisonment because there were mitigating circumstances on the record, namely that the prisoners had joined Veerappan’s gang out of duress since he had threatened them and their families. The Supreme Court ignored this most relevant circumstance, which is also enumerated in Bachan Singh in the list of relevant mitigating circumstances. Further, though another Bench of the Supreme Court had rejected the state’s appeal for enhancement [on ground of limitation, that is, expiry of time limit], the Bench [hearing the appeal of the prisoners] thought that this was a fit case to suo motu issue notice for enhancement. Another example of arbitrariness!”
According to reports, the MHA has forwarded its recommendations on the remaining mercy petitions to the President. Fast-tracking decisions on mercy petitions, observers say, smacks of a crude attempt to satiate the current public outrage against lawlessness. Carrying out death sentences in quick succession does not inspire people’s confidence in the law-enforcing machinery. On the contrary, it can only alienate India from the civilised world with due respect for human rights.