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Rejecting mercy pleas not President’s decision alone -Himanshi Dhawan
-The Times of India

President Pranab Mukherjee, having rejected the mercy petitions of seven death row convicts in less than seven months of assuming office, may appear to have a hard line on capital punishment but experts say he does not have much discretion in the matter.

While the statute grants clemency powers to the President through Article 72, constitutional experts say the power to grant pardon is not personal but a collective decision. The President is bound by the advice of the Union council of ministers while deciding on mercy petitions.

So, while it may appear from Article 72 that the President has powers to waive off death penalty overriding the judicial processes, it is not really so.

The Article says: "President shall have 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... including in all cases where the sentence is a sentence of death.''

Article 53 vests the executive power of the Union in the President that must be exercised by him either directly or through officers subordinate to him in accordance with the Constitution, but there are caveats to the use of this power.

For instance, Article 74 says that the President must act on the aid and the advice of the council of ministers with the Prime Minister as its head. "Provided that the President may require the council of ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration," it adds, leaving very little room for the President to do anything but go by the executive's decision.

The section also says that what advice is tendered by the council of ministers to the President shall not be inquired into in any court.

With these conditions placed before them, successive Presidents have chosen to take advantage of a minor loophole in the Constitution - that there is no time-frame to take the decision. So, Presidents have at times chosen to allow a decision, including rejection of mercy pleas, to linger while they are in office.

While Shankar Dayal Sharma "chose" to reject all 14 mercy petitions placed before him, both K R Narayanan and A P J Abdul Kalam expressed their reservations about the death penalty to the government. Narayanan "commuted" only one death sentence while Kalam disposed of two cases: he "rejected" one mercy petition and "commuted" another.

Kalam left behind a pending list of 25 mercy petitions for President Pratibha Patil who was given the unenviable task of "deciding" on the cases. She eventually "granted" clemency to 34 convicts and "rejected" three pleas involving five convicts. In other words, she had given her "consent" to execute five death row prisoners, but the executive chose to drag its feet.

When there was an outcry over her alleged non-application of mind in granting clemency to 34 death row convicts, her office sent a clarification which spelt out the nature of powers the President has in disposing of such cases.

It said: "The President has disposed clemency petitions only after due examination on receipt of the aid and advice of the home minister. All the backlog cases pertaining to the terms of the former Presidents were recalled and revisited by the present home minister and fresh advice tendered for due consideration of the President."

"In all these backlog and fresh cases," it added, "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."

In other words, the basic advice came from the home minister and the President considered the soundness of the advice. If she did not find the advice proper, she could send it back for re-consideration. But if the government's advice was the same the second time around, the President wouldn't have any wiggle room to change it.

In the clarification, Patil's office also spelt out the constitutional reasoning behind presidential pardons.

It said, "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."

It went on to add, "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.