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Living on Presidential lethargy
Inordinate Delay in Deciding The Fate of these Mercy Petitions Raises Concerns over The Consistency, Transparency and The Very Objective of these Procedures.
Issue Date - 23/06/2011
Timely trial. Well, that sounds some sort of an oxymoron in the Indian judicial system. But 25 pending mercy petitions with the President with some since 2003 is certainly more than unbelievable. There is no doubt that the hype that surrounds sentencing of capital punishment to convicts and mercy pleas cause a lot of stress on the President’s ability to take an objective decision under Article 72 of the Constitution that empowers the President of India to grant pardon or commute the sentence of a convict found guilty by court. But holding it for as long as eight years, for sure, sets a bad example for the system as a whole.

Perhaps, this is exactly what the Supreme Court (SC) vacation bench comprising Justices G. S. Singhvi and C. K. Prasad might have felt when it expressed ‘surprise’ over the delay and sought an immediate reply from the Delhi government on the matter. “The counter filed by Delhi Government will clarify as to why the petition for pardon has not been disposed of for last more than eight years,” the SC bench said.

However, the subject of ‘inordinate delay’, which can amount to a ground for Court to commute the death penalty under section 433(a), has some other contours which also deserve ample attention. These include reasons behind what constitutes delay, the impact of delay on the death row convicts, applicability and scope of fundamental rights protection to death row convicts and whether death sentence can be commuted into life on account of delay. The inordinate delay in the execution of the sentence is one circumstance, which has to be taken into account while deciding whether the death sentence ought to be allowed to be executed in a given case.

Without going into the details of how prolonged delay in deciding on a mercy petition could translate for the case and convict in question, former Chief Justice of the Delhi High Court A. P. Shah speaks in favour of timely trials. “There should be no doubt that a reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21,” Shah told B&E.

The issue has been a matter of debate for quite sometime and the politicisation of the case of Mohammad Afzal, who has been awarded the death sentence in the 2001 Parliament House attack case, only brought matters to fore. A. P. J. Abdul Kalam, as President, received Afzal’s mercy petition on October 4, 2006, and forwarded it to the Ministry of Home Affairs (MHA) for advice. Since then, the ministry has been examining the petition in consultation with the Government of Delhi. The MHA usually consults the state government concerned before submitting the mercy petition back to the President with its advice. The President’s powers under Article 72 are always exercised with the aid and advice of the Council of Ministers. The delay by the MHA to submit Afzal’s petition to the President with its advice indicates the dilemma the government faces in keeping the issue free of political considerations. Also, the apparent pick and choose policy adopted by the government (which is absolutely contrary to the stand maintained by the MHA) does not speak high volumes of the procedure in place as well. BJP has even termed the delay in deciding Afzal Guru’s petition (despite Guru himself asking for speeding up the process) as Congress party’s strategy to avoid a religious electoral backlash.

Irrespective of the interpretations and conclusions that one might derive in Afzal’s case, it is important that we first look at certain facts. As per information sought from the Government of India under the RTI Act on details of mercy petitions decided by and pending with the President in the last 15 years, the President decided 12 mercy petitions in the past 15 years, with clemency being granted in three cases. As many as 25 petitions, submitted by the MHA with its advice, are pending with the President for a final decision. The MHA is examining three petitions, in consultation with the respective State governments, to prepare its advice for the President’s final decision. Files pertaining to the cases that have already been decided upon reveal that the government has relied upon seven basic grounds for its advice to the President on the merit of each pending mercy petition. The guidelines, which are said to be based on facts, are easily verifiable, and leave the government with little discretion in the matter, include the personality of the convict (such as age, sex, or mental deficiency) or circumstances of the case (such as provocation or similar justification) and whether the court has expressed any doubt on the reliability of evidence but has nevertheless decided on conviction.

However, the absence of a time-bound mechanism to address these issues, which have already been decided upon by the Appellate court, only lends to the stress and pressure that could hamper the eventuality of these crucial decisions. Agrees Information Commissioner Shailesh Gandhi. “Any government procedure, be it for an ordinary ration card or a mercy petition, must be addressed in a time-bound manner. There has to be some time frame. The government needs to address all procedures within its realm with the same standards of governance,” he says, adding, “India always had the option of doing away with capital punishment, which we chose not to. The inordinate delay in deciding the fate of such petitions defeats the purpose of imposing such a severe punishment on perpetrators of heinous crimes”. But under the current environment, Ajmal Kasab, found guilty of the 26/11 attacks in Mumbai that claimed numerous lives, has almost a decade to live before he finally meets his fate. In such a scenario, the huge costs that the government incurs in maintaining such high profile prisoners is another point of deliberation.

While the progress in deciding on mercy petitions means a lot for convicts, the process needs to be immediately segregated from political pressures and other bindings that either cause inordinate delays or affect the usual course of procedure.

Parimal Peeyush           

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