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Keeping the nation in the dark -V Venkatesan
-The Hindu

By not publicly disclosing the reasons for rejecting Ajmal Kasab’s mercy petition, Pranab Mukherjee missed an excellent opportunity to contribute to the rule of law

President Pranab Mukherjee’s decision to reject the mercy petition submitted by the lone convict in the 26/11 Mumbai terror attack, Mohammed Ajmal Amir Kasab, is an instance of how public perceptions about a convict’s guilt can camouflage the government’s duty to explain the decision. The President’s decision is shrouded in secrecy, throwing little light on the principles which guided it.

Under Section 4(1) (d) of the Right to Information Act, every public authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons. This provision has no exemptions. The government erroneously denies information to RTI applicants seeking reasons for its mercy decisions, taking shelter under Article 74 (2) which only bars inquiries by courts into Ministers’ advice to the President.

Significant

The reasons for rejecting a mercy petition are significant, not only from the point of view of the convict who has sent it, but for other convicts who may use them as precedents while drafting their own.

Non-speaking rejections render the object of the President’s mercy power in a democracy meaningless, and its exercise arbitrary. They only leave the field open to uninformed commentary in the media about the President’s record in disposing of mercy petitions.

There was much misconceived criticism in the media of the former President, Pratibha Patil’s commutation of death penalties of 35 prisoners during her term forcing her to come out with a press release, while in office, in her defence.

Article 72 of the Constitution which enables the President to grant pardons, etc., and to suspend, remit or commute sentences has its parallel provision in Article 161 which enables the Governor to exercise similar powers with regard to matters to which the executive power of the State extends. The President or the Governor acts on the aid and advice of the Council of Ministers, while exercising the powers under these provisions. Unlike the Governor, however, the President may require the Council of Ministers to reconsider such advice, and the President shall act in accordance with the advice tendered after such reconsideration.

Scholar Bikram Jeet Batra has found that India’s first two Presidents, Rajendra Prasad and Radhakrishnan, stretched the limited powers available under the Constitution, and tried to assert their moral authority over the executive, by persuading it to reconsider its initial advice to reject mercy petitions in several cases.

Their successors — with the exception of R. Venkataraman and S.D. Sharma — by and large followed this legacy. Implicit in this legacy is the valid assumption that the pardon power can be exercised if there are compassionate grounds which may favour the convict, whatever the horrible nature of the crime found to have been committed. A corollary of this assumption is that the Supreme Court’s findings which resulted in the conviction and sentencing of the appellant convict would hardly matter to the President, if the compassionate grounds are sufficient to accept a mercy petition. The President and the executive sometimes differ on this, and the resolution of this difference often takes time.

When it appeared that the executive was not likely to revise its initial advice to the President, the Presidents used the option to delay the rejection of a petition as long as they could, even by not acting on it till the completion of their tenures. Presidents K.R. Narayanan, Abdul Kalam, and Pratibha Patil used this option, as the Constitution does not impose any time limit for the President within which a mercy petition must be disposed of. Silences in the Constitution also convey significant messages, and an unstated discretion to the President, when he or she disagrees with the advice tendered by the government, to delay the decision can be easily inferred.

Experience shows that successive Presidents stand vindicated by their pursuit of this legacy. Most of the 35 commutations decided by Ms Patil were part of the backlog left by Mr. Narayanan and Mr. Kalam. In many cases, the Ministry of Home Affairs (MHA), acting on behalf of the Council of Ministers, had initially advised the President to reject the petition. However, when the President asked the successor government and a new Home Minister to reconsider the earlier advice, it resulted in commutation.

Sometimes, even after the President rejected a mercy petition, hanging of the convict was stopped, on the basis of a fresh mercy petition, which was later accepted by the same President or his successor.

Case of Parmatma Saran

The earliest example of this is that of Parmatma Saran, whose mercy petition file is preserved in the National Archives. Saran’s was a unique case in the entire history of mercy petitions in India. The Supreme Court, like the courts below it, found him guilty of killing his wife by burning her, and did not find any mitigating factor in his favour. The Home Ministry first concurred with the Court, and President Rajendra Prasad rejected his mercy petition on January 10, 1962, on the basis of the Ministry’s advice.

However, before Saran could be executed, the MHA received a fresh mercy plea from Saran’s father-in-law in the interest of his five-year old grandson, born out of his deceased daughter’s marriage with Saran. This tilted the views of both the Home Ministry and the President in favour of commutation, as they found it rare that a victim’s relative could plead for mercy.

The commutation of the death sentence of R. Govindasamy to life imprisonment offers a dramatic example of how a flip-flop can happen after the President duly rejects a mercy petition. President Narayanan rejected his mercy petition, on the basis of the then NDA government’s advice, in October 1999. The same NDA government, however, stayed his execution, following various appeals from Tamil Nadu favouring commutation of his sentence. Govindasamy was the first convict to get relief from Ms Patil, who commuted his death sentence to life imprisonment on November 18, 2009 following the receipt of a fresh mercy petition. Satish was another recent case. The former Home Minister, Shivraj Patil, had recommended rejection of his mercy petition to the President in July 2008. But Ms Patil, on the basis of a fresh advice from Shivraj Patil’s successor, P. Chidambaram, commuted Satish’s death sentence to life imprisonment on May 8 this year.

Ms Patil left the mercy petitions of 16 convicts undecided. This suggests that she might have disagreed with the government’s advice to reject the mercy petitions of these convicts. One of these is that of Saibanna, who the Supreme Court admitted it had erroneously sentenced to death, by following a wrong legal precedent.

The Supreme Court admitted similar error while sentencing to death 12 other convicts. Fourteen former judges have, in a recent appeal to the President, justified the commutation of the death sentences of these 13 convicts, to life imprisonments.

Of these, five have already got their death sentences commuted to life sentences by the Governor or the President. The President will, hopefully, examine mercy pleas of the remaining eight, in the light of the former judges’ appeal.

The last hanging in India was that of Dhananjoy Chatterjee in 2004. Batra has found from MHA files under the RTI Act that the briefs prepared for President Kalam provided an inaccurate and incomplete view of the 10-year delay in his execution, ignoring official negligence. He suggests that a reasoned and transparent decision could have made it easy for the Supreme Court to intervene on the ground that relevant material was not placed before the President, before executing Chatterjee.

President Pranab Mukherjee missed an excellent opportunity to contribute to the rule of law, by not publicly disclosing the reasons for his decision on Kasab. Every death row convict has an inherent right under Article 21 — even if so far untested by the Courts — to be apprised of the reasons for the rejection of his mercy petition, which would deprive him of his life. Others are entitled to know the reasons as well under the RTI Act.