Wait for mercy

The inordinate delay in the rejection of mercy petitions by the President could lead to the commutation of death sentences by the judiciary.

ON August 10, a two-judge Bench of the Supreme Court, comprising Justices V.S. Sirpurkar and T.S. Thakur, confirmed the death sentence awarded to Mohd. Arif alias Ashfaq for conspiring to attack the Red Fort in Delhi in December 2000. The same day, the Union Home Ministry announced that it had recommended to President Pratibha Patil that she reject the mercy plea of Mohammed Afzal Guru, who was convicted for conspiracy in the Parliament House attack of December 2001.

While three soldiers died in the attack on the Red Fort, five terrorists, six security personnel and one civilian lost their lives at Parliament House. Both incidents were seen as attacks on symbols of Indian nationhood, and the convicts were sentenced to death for waging war against India. The Supreme Court did not find any reason to set aside or commute the sentences.

Although the two events were separated by a year, the investigation and trial in the two cases followed different time spans. Justice was delivered first in the Parliament House attack case; the Supreme Court confirmed Afzal Guru's death sentence in 2004. The government has been under tremendous pressure to reject Afzal Guru's mercy petition even though there is a threat of disruption of public peace and normalcy in Jammu and Kashmir if he is executed.

On August 11, Pratibha Patil rejected the mercy pleas of three convicts, Murugan, Santhan and Perarivalan, in the Rajiv Gandhi assassination case of May 1991. Although the Supreme Court confirmed their death sentences in 2000, it took the President 11 years to reject their mercy pleas.

The coincidence of these three events is significant as they raise issues that the government and the judiciary can no longer ignore.

Like others on death row, Mohd. Arif is entitled to seek relief through review and curative petitions in the Supreme Court. He will also have the opportunity to file a mercy petition with the President.

While the Supreme Court disposes of promptly the review and curative petitions following the confirmation of a death sentence, the President normally takes a number of years to come to a decision on a mercy petition. When a petition is finally rejected, the convict would have suffered extra imprisonment, which is not part of the person's sentence and therefore excessive and disproportionate to the punishment laid down under the law for the offence committed. In one of the cases, the Supreme Court recognised this as a legitimate ground to challenge the President's rejection of a convict's mercy petition and seek commutation of the sentence. But what constitutes inordinate delay in deciding a mercy petition has been open to debate and the Supreme Court has refused to fix a time limit for the President to decide.

Under Article 72 (c) of the Constitution, the President has the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person sentenced to death. While exercising this power, the President is bound by the advice of the Union Council of Ministers. The President could return the advice for reconsideration, but if it is resubmitted it is binding on the President. The Governor of a State has similar power under Article 161.

Faced with the onerous responsibility of having to decide so many mercy petitions, successive Presidents since the 1990s have adopted an option not mentioned in the Constitution: indefinitely delay a decision as there is no time limit for taking a decision. While an incumbent President could by merely sitting on mercy petitions avoid the stigma of having signed the death warrants of convicts, this has resulted in a huge backlog of petitions before successive Presidents.

After United Progressive Alliance (UPA) II came to power in 2009, it decided to recall one by one the mercy petitions pending with the President for review in the Home Ministry. For this, the Ministry prepared a list in chronological order on the basis of the date of trial court judgment. New cases received during the period went into the list according to the date of trial court judgment. After considering these cases, the Ministry submitted them to the President afresh.

The government's replies to Subhash Agrawal, an applicant under the Right to Information (RTI) Act, reveal that as on July 13 there were 32 mercy petitions. In 26 of these cases the Home Ministry has submitted its recommendations to the President.

Another reply reveals that President Pratibha Patil has commuted the death sentences of 19 convicts and rejected the petitions of five Mahendra Nath Das (on May 8), Devinder Pal Singh Bhullar (May 25), and the three convicts in the Rajiv Gandhi assassination case.

Terrorism-related cases

While recommending to the President decisions on mercy petitions, Home Minister P. Chidambaram appears to have evolved a new guideline that petitions of convicts in terrorism-related cases deserve no sympathy.

In his recommendation to the President to reject the mercy petition of Devinder Pal Singh Bhullar on May 13, Chidambaram did not consider as relevant factors Bhullar's conviction under the draconian and now-lapsed Terrorism and Disruptive Activities (Prevention) Act (TADA), Bhullar's retracted confession, his allegations of police torture to secure his confession or the dissent noted by Supreme Court judge Justice M.B. Shah when the court confirmed his death sentence in 2002. He believed that since Bhullar was involved in a terrorist incident, his case set him apart from others, and therefore he deserved no mercy, whatever the flaws in the prosecution and trial.

The Supreme Court confirmed Bhullar's sentence for his involvement in a 1993 terrorist attack in New Delhi, which claimed nine lives. Bhullar's confession to the police under TADA not admissible as evidence under the Evidence Act was the sole evidence against him. While two judges on the three-judge Bench that heard his appeal confirmed Bhullar's death sentence, Justice M.B. Shah, the third judge, found the evidence against him very weak and directed his immediate release. Later, while accepting his review petition, Justice M.B. Shah suggested that his sentence could be commuted to life imprisonment. But that did not help persuade the other two judges not to reject his petition.

On July 11, the Supreme Court heard a writ petition filed by Bhullar's wife, Navneet Kaur. In her petition, she pointed out that the President did not apply her mind while rejecting Bhullar's mercy petition on May 25. She alleged that the President vindictively rejected his petition because the Supreme Court had, on May 23, issued notice to the government on Bhullar's writ petition questioning the inordinate delay in disposing of his mercy petition. Some coincidence was discernible in this case as Chidambaram had sent in his recommendation to the President only on May 13, perhaps aware that the court was already seized of Bhullar's writ petition.

In her writ petition, Navneet Kaur also brought to the court's notice that Bhullar was undergoing treatment at the Institute of Human Behaviour and Allied Sciences for hypertension, psychiatric illness and suicidal tendencies caused by the delay in the disposal of his mercy petition and that execution of mentally sick prisoners was violative of Article 21 of the Constitution.

Chidambaram also did not recommend sympathy for Mahendra Nath Das, convicted of gruesome murders. In June, responding to an appeal by Das' mother, the Guahati High Court stayed his execution and asked the Centre and the Assam government to explain why it took 12 years to respond to Das' mercy petition.

The government's reply to Agrawal's application under the RTI shows that it acted only after Das threatened a hunger strike last year protesting against the inordinate delay. The Supreme Court had confirmed Das' death sentence in 1999 for beheading a man in 1996 while jumping bail in another murder case, in which he was later sentenced to life imprisonment.

Interestingly, Pratibha Patil's predecessor, A.P.J. Abdul Kalam, had disagreed with the then Union Home Minister, Shivraj Patil, and had suggested that Das deserved sympathy as he seemed to have been under tremendous mental pressure while committing the offence and that he needed counselling rather than extreme punishment. Kalam sought Das' file back from the Home Ministry after returning it with his comments, for a relook, but refrained from taking a decision.

On July 8, Justice B. Sudarshan Reddy (who has since retired) of the Supreme Court, in response to the petition filed by a non-governmental organisation (NGO), issued notice to the Home Ministry asking why mercy petitions should not be disposed of within a definite time frame. The court's intervention apparently forced the Ministry's decision to reject the mercy petitions of the three convicts in the Rajiv Gandhi assassination case and that of Afzal Guru.

Legal experts believe that the government's decision to reject mercy petitions in the cases of terrorism and repeat offences, while accepting them in other cases, may not pass legal scrutiny. Such a classification of offences lacks rationale and legislative sanction and is inherently violative of the Right to Equality under Article 14, it is pointed out. The facts and circumstances of each case of murder are unique and are not amenable to easy classification.

Unless the Centre comes up with a convincing explanation for the inordinate delay in rejecting their mercy petitions, convicts facing imminent execution could see a ray of hope in the form of the judiciary intervening to commute their sentences. It is now fairly well settled that courts exercise very limited power of judicial review so as to ensure that the President considers all relevant materials before coming to a decision to reject a mercy petition. In a few cases in the past, courts have commuted death sentences after the President took an inordinately long time to reject mercy petitions, prolonging the convicts' period of incarceration and the resultant mental agony.