The Supreme Court’s repeated directions to the Centre to decide expeditiously the mercy plea of Balwant Singh Rajoana—a death convict in former Punjab Chief Minister Beant Singh assassination case-has again brought to the fore the imperative need of amending Article 72 and 161 of the Indian Constitution, mandating a fixed time frame for speedy disposal of clemency petitionsseeking commutation of death sentence into life imprisonment by the President and Governor to meet the high ends of justice.Considering the high status of the office of the President and Governor, the framers of the Constitution did not stipulate any outer time limit in disposing mercy petitions under the above Articles, which means it should be decided within a reasonable time period in the interest of justice.Timely disposal of mercy petitions may prove to be a panacea in interest of justice and society at large and also the convict, considering the period of imprisonment undergone, seriousness of the offence, age of the prisoner, the health of the prisoner, good prison record, remorse and atonement, deference to public opinion etc.To recall, under Article 72 of the Constitution, 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. A parallel power has been given to the Governor of a state under Article 161 of the Constitution.Notwithstanding, inordinate delay in disposal of mercy petitions has become a rule rather than an exception as, presently, the delay of maximum 12 years is seen in their disposal, thus weakening basic objective and spirit behind the Presidential Pardon law. The mercy petitions were disposed of more expeditiously until 1980s when it would take minimum 15 days and maximum 10-11 months. However, from 1980 to 1988, the disposal period gradually increased to an average 4 years, when the Supreme Court decided a couple of such cases which paved way for developing jurisprudence of commuting the death sentence based on undue delay.Resultantly, the disposal from 1989 to 1997 witnessed the impact of the Supreme Court observations which brought down the average time to 5 month from 4 years. However, the delay in disposing of the mercy petitions has again mounted to maximum 12 years-causing hardships for the judiciary, society and the for the convicts.Consequently, the Supreme Court, in Devender Pal Singh Bhullar Vs State (NCT) of Delhi case, held that, “if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or executive as well as the constitutional authorities have failed to take note of consider the relevant aspects, the Court is well within its powers under Article 32 to hear grievance of convict and commute death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself”. This observation points that the executive is lacking in its constitutional obligation of disposing mercy petitions in reasonable period, which needs to be taken care of, to uphold the sanctity of the pardon provisions.Understanding the process of deciding mercy petitions, a convict on the death row can approach the President directly, via prison officials, or the Union Home Ministry or through the Governor of the state where he/she is incarcerated, once the Supreme Court gives its final ruling in a death penalty case. As per the law, the President then seeks the opinion of the Union Cabinet, which is provided by the Ministry of Home Affairs. The President might, in some case, send the MHA’s recommendation back for further clarifications. The Home Ministry may also recall its recommendation in order to provide a fresh opinion. Once the MHA submits a recommendation, the President will then accordingly decide upon a mercy petition. However, there is no set time frame within which a President must act.According to a report of the Law Commission of 2015, President K R Narayanan (1997-2002) and his successor President Abdul Kalam (2002-2007) hold the distinction of sitting on mercy petitions or putting the ‘brakes on the disposal of mercy petitions’. President Narayan did not act upon a single mercy petition sent to him, while President Kalam disposed of only two pleas-commuting one and rejecting the other.The ten years of indecision under Narayanan and Kalam were in stark contrast to the term of Pratibha Patil (2007-2012), India’s first female President who quickly became known for being one of India’s most lenient head of state, when she commuted 34 petitions and rejected only five. Only India’s first two Presidents (Rajendra Prasad with 180 commutations and Sarvapalli Radhakrishnan with 57) accepted mercy petitions than Patil did.On the contrary, before demitting office, President Pranab Mukherjee rejected 30 mercy petitions, a number greater than combined total of mercy petitions rejected by his four immediate predecessors. During the five years of his presidency, Mukherjee rejected 30 mercy petitions, including of Yakub Menon convicted of financing 1993 Mumbai serial blasts, out of total 34, thus accepting only four. His record of rejecting mercy petitions is unparalleled among his immediate predecessors and, in the history of Indian republic, is second only to President R. Venkataram, who rejected 45 mercy pleas.There have been Presidents, though rare, going against Government advice. President Pranab Mukherjee commuted to life the death sentences of four men, going against the Centre’s recommendation. Presidents, sometimes, express their dissent by refusing to act on a mercy petition, a trend seen during the Narayanan and Kalam years.According to President’s Secretariat website, the incumbent President Ram Nath Kovind has, till 28th July 2020, rejected 6 mercy petitions including one of Jagat Rai, who, along with accomplices, was convicted of killing a woman and five children by setting their house on fire while they were asleep in 2006, at Rampur Shyamachand village in Bihar. Similarly, he rejected the pleas of four convicts of Nirbhaya rape and murder case namely Mukesh Kumar, Vinay Sharma, Akshay Thakur and Pawan Kumar Gupta, who were later hanged to death.With Rajendra Prasad, Sarvapalli Radhakrishnan, Zakir Hussain, Pratibha Patil and few others being an exception, of late there has been a general trend of the Presidents rejecting mercy petitions. While Dr Rajendra Prasad accepted all 180 pleas placed before him, Dr Radhakrishnan also commuted all the 57 petitions while rejecting none. Zakir Hussain did not send a single man to gallows when he accepted 22 mercy pleas. V.V. Giri too did not reject a mercy petition, and accepted three pleas. Fakruddin Ali Ahmed and N. Sanjeeva Reddy did not deal with any mercy petitions during their tenures. Zail Singh rejected 30 mercy petitions, allowing just two. R Venkataram holds the record of rejecting the highest number of mercy pleas-45. He accepted only five petitions, as per report of the Law Commission.To recapitulate, undue and inordinate delay in disposal of mercy petitions don’t meet the ends of justice delivery system and goes against the aims and objectives of the law. Concept of pardon is an artefact of older times, of an age where a monarch possessed the power to punish or remit any punishment.It became a symbolic attribute of a God-like king having control over his subject’s life and death. It is in this perspective, the framers of the Constitution drafted this law on the thesis of human compassion and clemency. Therefore, it is imperative that the fate of death convicts is decided expeditiously, so as to clear the air of uncertainty hovering over their head and heart for years together.To illustrate, the mercy petition of Balwant Singh Rajoana-who is undergoing imprisonment for the last over 25 years after Punjab Chief Minister Beant Singh was killed in a bomb explosion outside Secretariat in 1995, is pending for last eight years, hanging his fate in balance. Same is the fate of Devender Pal Singh Bhullar-another death convict in Raisina Road bomb explosion case-who is also waiting for the disposal of his mercy petition for long time. There are several other convicts, whose mercy petitions are lingering indefinitely.Undoubtedly, the discretion to accept or reject any mercy petition lies solely with the executive as the President generally acts on the aid and advice of the Government, speedy and timely disposal of such petitions will infuse a fresh life into the pardon provisions and the Supreme Court also will not have to step in to commute death sentence into life imprisonment, though the Government is well within its powers to amend the Articles, fixing a fixed time frame for disposal, which would add more certainty and relevance to the existing laws.
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