core sector communique

Clarification Regarding Recent Media Reports on Disposal of Clemency Petitions by the President of India

Some reports have appeared in the media critical of the President’s role in the disposal of mercy petitions. These reports stem from a lack of correct appreciation of the constitutional provisions and the related court judgments in the matter. Article 72 does confer on the President the power to grant clemency. However, in the exercise of these powers, the President is not supposed to act on her own judgment but is mandated to act in accordance with the aid and advice of the Government in terms of Article 74 of the Constitution. The advice of the Government is binding on the Head of State. This has been authoritatively laid down by the Supreme Court. Thus, the power to pardon is a part of the constitutional scheme and not a private act of grace on the part of the President. When the President is expected to work as part of the constitutional scheme, the word, President, is an abbreviation for the Central Government. To say that President acted in haste or played to the gallery while handling mercy petitions is misconstrued. While the power under Article 72 of the Constitution does not contain any limitation as to the time within which the power so conferred shall be exercised yet, the Supreme Court has observed in certain recent cases that delays in disposal of mercy petitions may be minimized and that the condemned prisoners have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time. Furthermore, as several mercy petition cases remained un-decided for over a decade, the matter was also discussed in the Parliament in February 2011 and Government made its intent clear to expedite decisions on mercy petitions. Given this background, it would be misconceived to view the steps taken by the Central Government and the President to dispose of the pending mercy petitions as playing to the gallery or an act in haste. The allegation of non-application of mind in the disposal of mercy petitions is factually incorrect and misleading. The President has disposed clemency petitions only after due examination on receipt of the aid and advice of the Home Minister. All the 23 backlog cases pertaining to the terms of the former Presidents were recalled and re-visited by the present Home Minister and fresh advice tendered for due consideration of the President. In all these backlog and fresh cases, the Home Minister has examined the mitigating and extenuating circumstances and spelt out specific reasons substantiating his considered advice. In turn, the President, took well considered decisions after having been fully satisfied that the Government has tendered its aid and advice, properly and constitutionally. A queer pitch has been created as though many brutal criminals have been shown mercy and released. It is common knowledge that all death convicts seeking mercy are those who have committed ghastly and heinous crimes of the “rarest of the rare” category. Nevertheless, the Constitution confers on them the right to seek clemency. When clemency is granted, the courts have held that it does not wipe out the offence or disaffirm the judicial verdict. By the exercise of the power of pardon, the President does not amend, modify or substitute the judicial decisions. On receiving clemency, the death sentence gets commuted to imprisonment for the remainder of their natural lives. When the President, on the aid and advice of the government takes a reasoned decision to reject or accept the mercy petition, the President is discharging a constitutional obligation and not doling out generosity or acting to the contrary. Capital punishment is an emotive issue on which there is an ongoing debate between abolitionists and retentionists. As such, there is a need to have an informed discussion and debate in the matter. Be that as it may, so long death sentence remains a part of our statutes and seeking of clemency by a condemned prisoner or on his behalf is constitutionally ordained, the President is duty bound to discharge this obligation. The uncharitable comments on the President’s actions to fulfill constitutional obligations to dispose of mercy petitions is unwarranted.