Sunday, May 25, 2008

How President decides mercy petitions

In his interview to CNN-IBN, the Union Home Minister, Shivraj Patil shared an important piece of information relating to how President exercises his power under Article 72(1), to grant pardons, and to suspend, remit or commute sentences. The entire media missed this crucial aspect of the interview, even while assuming that his odd comparison of Sarabjit Singh, who awaits death sentence in Pakistan with Mohd.Afzal Guru, the Parliament attack convict, whose mercy petition is yet to be decided was the most controversial. I tried to get a link to the entire text of his interview with Rajdeep Sardesai, but I couldn't.

In his interview, Patil said once a convict submits a mercy petition to the President, the Rashtrapathi Bhavan forwards the petition to the Ministry of Home Affairs, for seeking the Cabinet's advice on the matter. The MHA then forwards the same to the concerned State Government for eliciting its views. It is only then the MHA formulates its advice and tenders it to the President, on behalf of the Council of Ministers. While Patil's concern was to dispel the propaganda of the Opposition that the Government is soft on terrorism, and that is why it has not so far rejected Afzal's mercy petition, his reference to the procedure involved in the exercise is a pointer to how such decisions are made. In a sense, it throws considerable light on the hitherto unexplored aspect of how the President decides the mercy petitions.

While the President can theoretically exercise his discretion under Article 72(1) (as the Constitution is silent on whether he was bound to consider the advice of the Union Council of Ministers), it seems a reasonable view to take that this power, like other powers of the President, is expected to be exercised on the advice of the Cabinet. In England, the sovereign invariably acts on the advice of the Home Secretary in this regard....and it is stated that on the outer side of the Home Secretary's chamber in England certain words have been inscribed which emphasise the tremendous power of life and death which so comes to be vested in the Home Secretary. In many States in the U.S., the Constitution or the law has provided for Advisory Baords to advise the Governor in the exercise of clemency. (Constitution of India, by P.M.Bakshi, 6th Edn.p.100).

Therefore, it is a sign of maturity of Indian federalism, that both the President and the MHA rely on the views of the concerned State Governments, before exercising this power. The State Governments are likely to take into account the likely impact on public order in those States, if the mercy petition is rejected or accepted. Thus if the State Governments concerned recommend inaction as a way out, should the Centre be blamed? Soli Sorabjee, for instance, has argued in this column that the exercise of this power by the President should not be contingent on its possible impact on law and order in the State, and that the former should be free from such extraneous considerations. But what if Patil says is correct (I have no reason to doubt that it is not), then it is not wrong to assume that the exercise of power under Article 72(1) by the President is much more diffused than what the Constitution probably envisages. I am inclined to consider it as a positive sign of the willingness of the Centre to accommodate the States' concerns while exercising this power.

6 comments:

tarunabh said...

Dear Venkatesan

Thanks for this - very interesting. At least two Presidents have had very important role to play in death penalty matters, and often against the advice of the council of ministers. I could not find a relevant link to back up my claim, but I clearly remember having read both of them at some point in the past. President Narayanan apparently exercised the de facto Presidential veto by remaining silent - there was not a singly execution during his term as President. The only mercy petitions that he did dispose of were when the Home ministry advised clemency (e.g. in Nalini's case after Sonia Gandhi publicly requested clemency for her and Home Ministry followed it up). But if the advise was negative (I am assuming this, perhaps the inaction was on the Home Ministry's side, but this is unlikely), Narayanan just sat on the petitions - caught between his constitutional duty to take the advise and moral considerations. Since the constitution does not specify a time limit within which the President must act on the advise - this was similar to Giani Zail Singh who sat on the Postal Bill because it invaded privacy and effectively killed it. Much of my thoughts on Narayan are from memory and speculation, so if anyone knows of a case where he denied a mercy plea which led to execution, I would be most interested to find out.

Kalam, on the other hand, did allow the execution of Dhananjoy - but thereafter, he prepared a memo for the Home Ministry to reconsider death penalty as a punishment. This was, arguably, acting not only according to the letter of the constitution but also to its spirit. But interestingly no other execution took place during his term - either the Home Ministry decided not to embarrass him by advising more rejections of mercy pleas, or he took the Narayanan route thereafter.

I think I am correct in thinking that India has actually executed only one person in the past 10-15 years - Dhananjoy.

bala said...

Just a short recap: the mercy petition relates to a person convicted of plotting a terrorist attack on the Indian parliament - an attack which many of our security personnel died defending. The attack is not just heinious for the loss of life that it caused but also for its symbolic attack on Indian nationhod itself.
Having been duly tried and convicted in the courts of India, the courts (including the SC) have found it to fall under the "gravest of the grave" instances for death penalty. The person still expresses no regret for his actions and on the contrary, still has an aggressive attitude. Given all this, it is shocking that the Indian govt. is trying to effectively overturn this verdict by using the mercy petition as a political tool. If the govt. does not have the courage to go ahead with the prescribed punishment, it is not mercy or public order which is motivating it but the same old cheap political maneouverings!

Vikram Raghavan said...

I suppose the President would also have to take into account the Supreme Court's guidance in Kehar Singh and Maru Ram. In Kehar Singh, the Court emphasized the need for the executive to make an independent and objective judgment of the case -- it could not simply rely on the court's opinion of guilt or innocence. That would imply that the executive does exercise some discretion in deciding on the merits of a mercy petition. But this discretion has to be exercised in accordance with established constitutional parameters in a manner that does not render it vulnerable as an arbitrary exercise of power.

Parul said...

It has been argued that the power to pardon derives an exemption from judicial review by virtue of being a prerogative of the executive, a discretionary power intended by the Constitution to be beyond the scope of judicial review. However, a reading of the wording of the relevant articles in the Constitution reveals that the silence of the provisions relating to the pardoning power of the President and the Governor leave ample scope for arguing for and against a review of this power. It is a well-settled principle of administrative law that executive action would be open to judicial review, and it is difficult to see why this particular category of executive action should be treated any differently.

Although the judicial review of the manner of exercise of the executive decisions rejecting mercy petitions must be confined to an examination of the procedural propriety of such decisions, it is not difficult to see how such an inquiry cannot be exploited to enter the merits of the case, particularly given the scope for subjectivity in the process of selecting the relevant considerations in each case that would bear a link to the grounds of procedural fairness sought to be assessed. In the absence of guidelines laid down by the Constitution regarding the manner in which the President and Governor are expected to exercise the power to grant pardons, the power of judicial review of such decisions also becomes susceptible to expansion.

Parul said...

Also, regarding Bala's comment, I don't think it is necessary for the guilt of the accused/mercy-seeker to be in question in each case involving the power to pardon. It would certainly be relevant in cases where the failure of the sentencing court to appreciate evidence is a ground contained in the mercy petition. However, in many other cases, the executive exercises its power by examining extraneous considerations, such as the contribution of the accused to society and his conduct post-sentencing. In fact, it has been argued that this power has been vested in the executive so that the discretion exercised can take into account factors such as public sentiment, which the courts may not be at liberty to do.

Parul said...

Also, regarding Bala's post - in a lot of pardon cases, the guilt of the accused is not in question. What that means is that even if the President finds that the decision of the judiciary to sentence a person to death, for example, is correct, (s)/he may still exercise his power to pardon in light of extraneous circumstances, such as the adverse impact that the execution of the accused would have on the public, or the potential contribution of the accused to society.