While Pratibha Patil's regime was labelled as ‘merciful’ by some activists for pardoning as many as 35 death convicts, the former president says she took the decision only after receiving advice from the home minister. The question is will the new home minister Sushilkumar Shinde provide right advice in the case of Ajmal Kasab?

Moneylife Digital Team

While there is a general perception that the president is the final authority to take a call on mercy petitions of death convicts, it may not be the case. As many as 11 mercy petitions of death convicts are pending before Indian President Pranab Mukherjee, however, during 2009-12, the ministry of home affairs (MHA) recalled 26 mercy petitions to review its advice. Acting on the reviewed advice from MHA, the then President Pratibha Patil decided on 18 cases, reveals a Right to Information (RTI) reply.

According to reply received by RTI activist, Subhash Chandra Agrawal, there are 11 mercy petitions pending before President Mukherjee, including that of Parliament attack accused Afzal Guru. At present there is only one file of Balwant Singh Rajoana, killer of former Punjab chief minister Beant Singh, pending with the MHA.

Even, former President Pratibha Patil admitted that she disposed the 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,” said a release from the President’s Secretariat .

The release issued in June 2012, further says, “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.”

According to Mr Agrawal, every convict of a death sentence gets opportunities at different stages of trial till the Supreme Court, in rarest of rare-most cases, endorses the death sentence. “Latest RTI response reveals that 26 files of mercy petitions were recalled from Rashtrapati Bhawan out of which in most cases death sentence were reviewed by the MHA to be converted in to life sentence. It is unjustified to interfere so liberally with the Supreme Court decisions. System may be formulated whereby it may be made mandatory to hear family members of victims before pardoning convicts of death-sentence,” he said.

While delivering the death sentence to Pakistani terrorist Ajmal Kasab in the 26/11 Mumbai terror attack case, the Supreme Court pointed out that the object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing.

A bench of justices Aftab Alam and CK Prasad said as long as the death penalty remains on the statute book as punishment for certain offences, including “waging war” and murder, it logically follows that there must be some cases, howsoever rare or one in a million, that would call for inflicting that penalty. “That being the position we fail to see what case would attract the death penalty, if not the case of the appellant,” the bench said.

Refusing to show any mercy to Kasab on account of his young age and illiteracy, the apex court observed, “…the offences committed by the appellant show a degree of cruelty, brutality and depravity as in very few other cases. It is already seen above that the appellant never showed any repentance or remorse, which is the first sign of any possibility of reform and rehabilitation.”

Kasab, the only Pakistani terrorist caught alive in the mayhem that killed 166 persons is lodged in Arthur Road Prison in Mumbai, was sentenced to death by a special anti-terror court on 6 May 2010, which was affirmed by the Bombay High Court on 21st February last year. Nine other Pakistani terrorists were killed by security forces in the operations.

Abnormally high delay in deciding mercy petitions and also subsequent execution in case of rejection of mercy petitions unnecessarily creates provocation including even state assemblies passing resolutions for pardon on religious and regional backgrounds says Mr Agrawal. “Even the division bench of the Supreme Court has expressed concern on such policy of indecision which is even torturous for convicted ones living in a life of uncertainty apart from creating unnecessary emotions and provocation, diluting fear against committing the crime. Rule should be to finally decide on mercy petitions within three months of their filing and hanging done within one week of rejection of mercy petition. Indecision can repeat incidents like infamous hijack of IC-814 at Kandhar to get death convicts like Afzal Guru and Kasab freed before being hanged,” the RTI activist added.

The question now is whether the newly-appointed home minister Sushilkumar Shinde would provide timely advice to the new President Pranab Mukherjee, a veteran in Indian politics, or keep the files pending.