A presidential dilemma

President A.P.J. Abdul Kalam faces the unpleasant onus of having to take a decision on the mercy petitions of 20 convicts facing capital punishment, even as the Union Ministry of Home Affairs, to which he has referred their cases, reviews them.

in New Delhi

NEVER before has a President of India faced such a difficult moral dilemma involving his powers under the Constitution which impinge on his humane vision. Under Article 72 (1)(c), the President has the power to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the law provides for a death sentence. The Constitution provides similar powers to the Governor under Article 161. When the petition for clemency is pending before the President or the Governor, the execution of the sentence of death awarded by a court stands suspended.

The number of mercy petitions pending with the President from convicts on death row has risen to 20. Twelve of these have been pending since the term of former President K.R. Narayanan. The National Democratic Alliance (NDA) government did not advise President A.P.J. Abdul Kalam to grant pardon in any of these cases. Shortly after the United Progressive Alliance (UPA) government assumed office last year, Kalam referred these petitions again to the Ministry of Home Affairs for a possible review of the previous government's decision. The Ministry reiterated the advice tendered to him by the NDA government, saying those cases did not deserve the President's mercy.

Kalam went through the files of each of these 20 convicts meticulously and made some observations in a note that he sent to the Home Ministry along with these files. Kalam, according to sources in the Rashtrapati Bhavan, made the following points in the note:

(Clockwise from top left) File photographs of Santhan, Perarivalan and Murugan, who are awaiting a decision on their clemency petitions with the President, and Murugan's wife Nalini whose sentence was commuted to life term after Sonia Gandhi appealed for mercy on her behalf. The four were convicted in the Rajiv Gandhi assassination case.

1. The Home Ministry, before recommending any action on a petition, should consider the sociological aspect of the cases;

2. Besides the legal aspects, the Ministry should examine the humanist and compassionate grounds in each case; these grounds include the age of the convict and his physical and mental condition;

3. The Ministry should examine the scope for recidivism in case a death sentence is commuted to life imprisonment through the President's action; and

4. The Ministry should examine the financial liabilities of the convict's family.

The Department of Justice under the Home Ministry, which is now reviewing these cases in the light of Kalam's note, has a somewhat different perspective on how such petitions should be decided. The Joint Secretary in the Department agreed that the government ought to consider the socio-economic factors and the age and health of each convict before advising the President on the mercy petitions. But he said that the Home Ministry also took into account the gravity of the offence, whether the offence was premeditated or not, and the conduct of the convict in jail. "We want to be sure on all fronts," he said.

This is perhaps the key to the differing perceptions of the government and the President. Whereas the government believes that the gravity of the offence and the Supreme Court's findings on the guilt of the convict ought to be given due weight while considering the mercy petitions, the President does not think these are relevant factors to be considered.

No doubt, the Supreme Court found all these cases to be "rarest of rare", such as, for instance, the Bachan Singh case (1983). In that case, the Constitution Bench of the court concluded by a majority of four to one that the award of death penalty did not violate Article 14 or 21 of the Constitution. But it ruled that death penalty should not be imposed save in the rarest of rare cases when an alternative remedy is unquestionably foreclosed.

But the court held in the Kehar Singh case (1989) that it was open to the President to exercise the power vested in him by Article 72 to scrutinise the evidence on record and decide on the sentence. In doing so, the court said, the President does not amend or modify or supersede the judicial record. "The President acts in a wholly different plane from that in which the court acted," it held. The court further held: "It is apparent that the power under Article 72 of the Constitution entitles the President to examine the record of evidence in the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. The President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by Supreme Court." The court held in this case that the President had the discretion even to hear the convict orally.

THE mercy petitions include those filed by the three men sentenced to death in the Rajiv Gandhi assassination case and now lodged in jail, in Vellore, Tamil Nadu. They are Perarivalan, Murugan and Shanthan. The death sentence of Murugan's wife Nalini was commuted to life term by President K.R. Narayanan following a plea by Sonia Gandhi. There are also four associates of the sandalwood smuggler Veerappan in Belgaum jail, whose death sentences are awaiting a decision on their mercy petitions.

At least eight of these petitions are from convicts who cannot be described as terrorists. One was convicted for murdering a five-year-old girl, while the rest were convicted for caste-and-gang-related killings. Even among the so-called terrorists, there are convicts who claim to have been victims of undue influence and coercion by a leader who was either dead or remained at large.

The former Attorney-General, Soli Sorabjee, expressed the view that a terrorist who has declared war on the nation is in essence no different from enemy soldiers whose duty and mission it is to maim and kill the country's citizens. Enemy soldiers and personnel, he said, are killed in war not by way of reprisal but for the sake of the nation. Seen in this light, terrorist-convicts may not, after all, deserve mercy.

Janak Raj Jai, a writer and a legal expert, suggests that capital punishment may perhaps be reserved only for terrorists. Jai, who has written a book on death penalty, was invited by President Kalam for a discussion in August. Jai suggested to him that a convict whose mercy petition had been accepted by the President could continue to be in jail beyond 14 years - the minimum sentence meant for life imprisonment - if he could not be reformed and rehabilitated within that period.

Under the Constitution, the President can return a recommendation to the Cabinet for reconsideration only once; if the Cabinet sends the recommendation back, the President is bound to act on that advice. However, there are a few areas where the President can exercise his discretion, independently of the aid and advice of the Cabinet. Is Article 72 one of those areas where the President can exercise unfettered discretion?

Former Chief Justice of India P.N. Bhagwati was the lone Judge who dissented in the Bachan Singh case. He is of the view that the President enjoys absolute powers under Article 72. According to Jai, advice by the Home Ministry is bound to be political and will not inspire confidence. His contention is that as the state is the prosecution agency in all cases of murder, it cannot be expected to decide on a mercy plea objectively and upset a judicial verdict.

The theory that the President or the Governor, while deciding on mercy petitions, acts with the aid and advice of the Council of Ministers has led to bizarre situations. The President, in practice, is asked to submit to the opinion of a Joint Secretary in the Department of Justice or the Home Minister, in their individual capacities. The Council of Ministers headed by the Prime Minister, with whose aid and advice the President exercises his powers in most other matters, does not collectively apply its mind to the merits of every mercy petition.

If the President disagrees with the Home Ministry's advice, he has the option in practice to avoid taking a decision on these petitions, as some of his predecessors have done. The Supreme Court has held in the Triveniben case (1989) that inordinate delay in taking a decision on mercy petitions by the President could itself be a ground for commuting a sentence of death, since it causes so much mental torture for the convict.

Although it is debatable whether the convicts see the delay caused by executive indecision in their favour as it extends their lives, the prolonged anxiety is sure to neutralise any quantitative addition to their lives.