Pratibhas legacy

Pratibha Patil was a working President in her own way, as her record on disposing of mercy petitions from death row convicts shows.

In the history of Indian presidency, a distinction is mostly drawn between a working President and a rubber-stamp President. A working President, it is assumed, is more assertive in his/her relationship with the government than one who simply toes the line of the Council of Ministers headed by the Prime Minister. President Pratibha Patils five-year tenure shows that a President, even when not faced with the challenging circumstances that may pave the way for such assertion of powers can contribute to the dignity of her office without getting into any conflict with the government.

A President is tested in the light of how often he/she subjects the governments advice to scrutiny and reconsideration although he/she may be bound by it ultimately. History judges a President also in terms of how he/she exercises the narrow discretion available to him/her in appointing a Prime Minister when a general election produces a hung verdict or in arriving at the truth of a Prime Ministers majority support in the Lok Sabha in the face of conflicting claims from rival contenders for power.

Pratibha Patil has been spared any of these tests as her term has been relatively free from situations that would have necessitated them. As revealed by her in one of her interviews to the media, she did not have high expectations about the potential of her office when she began her tenure. But her perception changed over the years.

In her interactions with the media on the eve of her presidencys closure, Pratibha Patil often speaks about her contribution to the empowerment of women and the creation of a realisation of the need for a change in the agrarian policies and the need to introduce a second Green Revolution, especially in the rain-fed areas, with the help of knowledge and technology.

It was on the basis of the report submitted by the Committee of Governors, appointed by the President to study and recommend strategies for speedy socio-economic development and empowerment of women, that the government set up the National Mission for Empowerment of Women to coordinate and monitor the implementation of women-related programmes. The President set up another committee headed by Justice Ruma Pal, a former judge of the Supreme Court, to advise the government on the status of women. Again, it was on her advice that the government reconstructed the National Credit Fund for Women, or the Rashtriya Mahila Kosh, into a development bank and increased its corpus. It now makes funds available to self-help groups and women-owned enterprises through non-governmental organisations, which act as intermediaries.

In the context of two controversies that surrounded her tenure, she appeared sensitive to public criticism. In the first instance, when she was allotted a plot of land in Pune belonging to the Defence Ministry to build her post-retirement home, she returned it to the Ministry when she came to know that it was meant for war widows. Secondly, when information gathered under the Right to Information (RTI) Act showed that the government had spent Rs.205 crore on her 12 foreign visits to 22 countries across four continents, she defended it by saying that they were made at the request of the government to promote and strengthen Indias relations with other countries.

Highlight of the tenure

However, the highlight of Pratibha Patils tenure is the record rate at which she disposed of mercy petitions filed by death row convicts that were pending for unknown reasons since the previous presidencies. The President herself did not see it as a positive aspect of her tenure, perhaps mindful of the possible adverse reaction from relatives of the victims murdered by these convicts.

But she did try to put the record straight when confronted with a barrage of criticism from the media that she had pardoned convicts found guilty of committing serious crimes such as rape and murder of children and women and had not applied her mind in disposing of these petitions.

In an unusual press release on June 25, she pointed out that Article 72 of the Constitution confers on the President the power to grant clemency. However, in the exercise of this power the President is not supposed to act on his/her own judgment but is mandated to act in accordance with the aid and advice of the government as per the provisions of Article 74.

She said: The advice of the government is binding on the head of state. This has been authoritatively laid down by the Supreme Court. Thus, the power to pardon is a part of the constitutional scheme and not a private act of grace on the part of the President. When the President is expected to work as part of the constitutional scheme, the word, President, is an abbreviation for the Central government.

She was especially irked by the criticism that she and the government acted in haste and played to the gallery. She explained that several mercy petitions remained undecided for over a decade, and referred to the Supreme Courts recent observation that delays in the disposal of mercy petitions may be minimised and that the condemned prisoners had a pertinent right to insist that a decision be taken within a reasonable time. She also recalled the Central governments intention, as revealed to Parliament in February 2011, to expedite the decisions.

Pratibha Patil inherited 23 undecided mercy petitions from her predecessors when she assumed office in July 2007. The Central government, through the Union Home Minister, had mostly recommended rejection of the petitions. In the normal course, these recommendations must have been binding on the President even though the President can ask the government to reconsider the advice once. However, as the Constitution does not impose a time limit on the President to accept the governments recommendation on a mercy petition, Pratibha Patils predecessors chose the convenient option of not taking a decision on the mercy petitions.

When P. Chidambaram was made Home Minister in November 2008, he recalled and revisited these mercy petitions and tendered fresh advice for due consideration of the President. This was as it should be, because no President should be under an obligation to accept a recommendation tendered by a Home Minister who was no longer in office.

In the press release, Pratibha Patil said: In all these backlog and fresh cases, the Home Minister has examined the mitigating and extenuating circumstances and spelt out specific reasons substantiating his considered advice. In turn, the President took well-considered decisions after having been fully satisfied that the government had tendered its aid and advice, properly and constitutionally.

Critics have questioned whether the President is justified in granting clemency in cases where the death penalty had been confirmed by the Supreme Court because the offences committed by the convicts were ghastly and heinous and had been declared the rarest of rare cases. Through her press release, Pratibha Patil has shown that this criticism is completely misinformed.

She explained: Nevertheless, the Constitution confers on them [the convicts] the right to seek clemency. When clemency is granted, the courts have held that it does not wipe out the offence or disaffirm the judicial verdict. By the exercise of the power of pardon, the President does not amend, modify or substitute the judicial decisions. On receiving clemency, the death sentence gets commuted to imprisonment for the remainder of their natural lives. When the President, on the aid and advice of the government, takes a reasoned decision to reject or accept the mercy petition, the President is discharging a constitutional obligation and not doling out generosity or acting to the contrary.

The disconnect between the Presidents decisions on the mercy petitions and the public perception of them perhaps stems from the governments reluctance to reveal its advice to the President on the petitions. When Frontline approached the Ministry of Home Affairs seeking copies of the recommendations made by the Home Minister to the President in 10 cases in which the President commuted the death penalty, the Ministry refused to oblige, seeking shelter under Article 74(2). This provision states that the question whether any, and if so what, advice was tendered by the Ministers to the President shall not be inquired into in any court. The Central Information Commission, however, has ruled in a recent case that while the actual advice need not be disclosed, the material which formed the basis of the advice can be disclosed to the applicant under the RTI Act.

According to information gathered under the RTI Act, Pratibha Patil has accepted the mercy petitions and commuted the death sentences of 33 convicts. She has rejected the mercy petitions of five. She will most probably leave her office without deciding 17 petitions (including that of Mohammad Afzal Guru, convicted and sentenced in the Parliament building attack case), on which she has received recommendations from the Ministry.

Activists seeking abolition of the death penalty believe that the Ministry perhaps has recommended the rejection of the 17 petitions and that is why the President left them undecided so that her successor and Chidambarams successor will have an opportunity to re-examine them.

The question that naturally arises is: If Pratibha Patil is such a humane President, why did she accept the Ministrys recommendation to reject the mercy petitions of Mahendra Nath Das, Devender Pal Singh Bhullar, Santhan, Murugan and Perarivalan (Arivu)? Each of these decisions, however, can be explained. The Ministrys replies under the RTI Act show that the President had to accept its recommendation to reject Mahendra Nath Das petition because, for some strange reason, it pointed out to her that if the government insisted on its recommendation for a second time after reconsideration it will be binding on her legally. She, therefore, had no option.

Santhan, Murugan and Arivu were sentenced to death in the Rajiv Gandhi assassination case. Bhullar was convicted in a terrorism case involving the death of nine persons. Social activists who are against the death penalty believe that the government would not have recommended the rejection of mercy petitions of Santhan, Murugan and Arivu without ascertaining the views of Sonia Gandhi, Rajiv Gandhis widow. It would not have been correct to delink their petitions from that of Bhullar, as the government appears to be following a policy of showing no mercy for convicts in cases of terrorism.

All the five convicts have challenged the Presidents rejection of their mercy petitions in the Supreme Court, citing inordinate delay and non-application of mind by the executive as the grounds for their plea.

Her compulsions in rejecting the five mercy petitions notwithstanding, history will consider Pratibha Patil the most merciful President that India has seen.