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Govt questions SC’s power to reopen death penalty cases -Dhananjay Mahapatra
-The Times of India


NEW DELHI: The Centre is all set to legally lock horns with the Supreme Court by questioning the court's powers to call for judicial scrutiny the President's exercise of constitutional power to grant pardon or commute sentences of condemned prisoners.

"The decision of the President under Article 72 of the Constitution, either accepting or rejecting a petition, is a sovereign act. This sovereign act is performed after the courts have given their verdict and this sovereign act cannot be subjected to review by the Courts," the Centre said.

"Entertaining of an appeal after the President has rejected the mercy petition also amounts to reopening the case. Once the mercy petition has been decided by the highest constitutional authority, the President of India, the courts should not allow reopening of the case, as the case has achieved its finality (in judiciary). Otherwise, reopening of the cases would be unending and it may never attain finality," it said.

The Union government said this in its petition in the Supreme Court seeking review of the May 1st judgment, in which the apex court commuted the death sentence awarded to double murder convict M N Das to life sentence on the ground that there was inordinate and inexplicable delay on President's part to reject his mercy plea.

While saying that it had fully explained the decade-long movement of Das' mercy plea file both in the ministry of home affairs and the President's Secretariat, the Centre, for the first time, questioned the apex court's jurisdiction to reopen cases of death penalty after rejection of mercy pleas by President.

Smarting under the repeated judicial scrutiny of President's decisions to reject mercy pleas on ground of delay, the Centre's review petition also aimed to curb the increasing trend among condemned prisoners to move HCs and the apex court after rejection of their mercy pleas by Governor or President.

A little over two months ago, the SC had rejected Delhi Bomb blast convict Devenderpal Singh Bhullar's plea for commutation of death penalty to life sentence. However, it accepted Das' plea on the ground that there was an 11-year delay in deciding his mercy plea by President and also that it was not properly appreciated.

The Centre also did not forget to rub in the delay on judiciary's part in deciding the murder cases, from trial stages and appeals through the HC up to the SC. Why it is that adverse view was taken of the delay in executive side in deciding the mercy plea and not that of the delay in deciding murder cases and appeals in judiciary? it asked.

"No distinction can be drawn between the delay during the trial and the delay in considering the mercy petition by President. It cannot be said that delay during the trial is justified and the delay by President in consideration of the mercy petition is not justified," the Centre said.

It said as soon as the SC rejects an appeal against death sentence, the condemned prisoner goes into mental agony recognizing that he had inched closer to the hangman's noose. But since the execution is stayed during the pendency of mercy pleas, delay in deciding such mercy petitions actually keeps alive the ray of hope for life in the condemned prisoner. So, delay in deciding mercy pleas does not cause any additional mental agony for the condemned prisoner, the Centre reasoned.

"During the period when his mercy was pending, he and his 'ray of hope' remain alive. So, it is submitted that he does not suffer acute inhuman mental torture and agony during the pendency of his mercy petition, when his execution remains suspended," the government said.

Moreover, delay in deciding mercy pleas does not, in any manner, lessen the heinous nature of the offence which forced the HC to confirm the death sentence and the SC to uphold it, the Centre added.