Well, at least I need not be worried about egg on my face anymore, since this article from The Wire showed up in search results today. And, we learn from it that this is actually the second time that the President (this President) has set aside advice given to him by the MHA regarding a mercy petition. The previous instance was the commutation of the death sentence awarded to Jeetendra (aka Jitu Singh Gehlot). Remember this commutation? Me neither. Mind boggling, the lack of footage for this.
Now, I don't want to go on some quixotic crusade, barking in the wind and all. But I really don't know which is more worrying - the fact that the President has begun to make a pattern out of disregarding the advice given to him by his Council of Ministers or the fact that no one seems to be concerned about it at all. Forget concern, The Wire article concludes that "Pranab Mukherjee’s quiet rejection of the government’s advice and the government’s tacit acquiescence to it have shown that it is indeed a proud moment in India’s presidency"! Egad! A proud moment in India's presidency? And what price India's Constitution?
The Indian Express' reporting on this commutation, last updated three days ago, mentions an interesting angle suggested by "sources" as to why the President has chosen this approach:
the President set aside the advice of the ministry as there were concerns about the decision unleashing a fresh round of caste skirmishes in Bihar and also because of the ‘inordinate delay’ by the state Governor in deciding on the mercy petitions
One is immediately reminded, by the first part of the above reasoning, of this commentary on the pardoning power:
The administration of justice through courts of law is part of the constitutional scheme to secure law and order and the protection of life, liberty and property. Under that scheme, it is for the judge to pronounce judgment and sentence, and it is for the executive to enforce them. Normally such enforcement presents no difficulty; but circumstances may arise where carrying out a sentence, or setting the machinery of justice in motion, might imperil the safety of the realm. Thus, if the enforcement of a sentence is likely to lead to bloodshed and revolution, the executive might well pause before exposing the State to such peril.
[Constitutional Law of India, Vol. 2; H. M. Seervai, 4th Edition, pg. 2093, para. 18.112]
All well and good of course, but that Express article also tells us that the Bihar Governor, Ram Nath Kovind, had rejected the mercy pleas made to him by the four convicts under Art. 161 back in February 2016. And said rejection was indeed based on the advice of the Bihar Government, the particular Executive that would have to deal with any of the dreaded and apprehended renewed caste skirmishes. Now, Mr. Kovind has been a BJP MP in the Rajya Sabha, but the current Council of Ministers in Bihar advising him is drawn not from the BJP, but from the JD(U), RJD and the Congress. Also, since The Wire article focuses on the Dalit antecedents of three of the four, it should be noted that Mr. Kovind (Advocate Kovind, I should say) has been the President of the BJP Dalit Morcha as well as of the All India Koli Samaj.
Setting aside the politics and returning to the constitutional issues, and the second part of the reasoning mentioned in the Express story: the inordinate delay (by the State Governor) in deciding the mercy petitions. That there has been tremendous delay is undisputed. The offences were committed in 1992 and the death sentence was awarded in 2001 and finally upheld by the SC in 2002. Over 14 years spent on death row is simply unacceptable.
In its reporting on this, the Hindustan Times informs us that the mercy petitions were forwarded to the President's Secretariat on July 7th 2004. "However, the mercy petitions neither reached the Home Ministry nor the President's Secretariat. It was only after the intervention of the NHRC that these were processed after 12 years." Bizarre indeed, and sufficient reason, even in the otherwise bloodthirsty TDL's opinion, for commuting the sentence.
The Wire piece also uses the 'inordinate delay' line of reasoning, quoting the Shatrughan Chauhan case last seen in the previous post below, wherein a three-judge bench headed by Chief Justice Sathasivam held that undue delay in rejecting mercy petition amounts to torture and causes physical and psychological agony. The Court ruled that
if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone.
That's right: this Court is well within its powers to commute the death sentence. Not the President, against the advice of his Ministers. The government should have advised the President appropriately, in light of Shatrughan Chauhan. A more sound procedure: the convicts could have approached the Supreme Court citing Shatrughan Chauhan and have had their sentences commuted, reinforcing the precedent and laying down the guidelines forever. Were none of the many human rights bodies and anti-death penalty organisations (such as the PUDR, so instrumental in Shatrughan Chauhan) in contact with the four, advising them as to their rights? Did we really need to weaken the Constitution to uphold Shatrughan Chauhan?
Another possible additional reason for President Mukherjee's activism with regards to mercy petitions that has been put forward is that his five-year term expires in July and he would understandably wish to depart leaving behind no unfinished business. The President has indeed worked to ensure that he leaves a clean slate for his successor as far as mercy petitions are concerned. It can only be hoped though that the 14th occupant of the chair will regard these incidents as aberrations rather than precedents.
