To have mercy or not...
Does not commutation of death penalty, awarded for a heinous and barbaric crime merely on the ground of delay in deciding on a mercy petition by the President, involve an intricate Constitutional question? In most unambiguous terms it does, simply because the gravity of crime becomes in no way lesser with the passage of time, even though human rights concerns may view the period of a convict's suffering entirely with a different angle.
The apex court has dismissed the Centre's petition seeking review of its judgment commuting the death sentences of three Rajiv Gandhi assassination convicts - Murugan, Santhan and Perarivalan - to life sentences on the ground of "inordinate delay" in Presidential decision in rejecting their clemency pleas. This raises several key questions that need answers in the interest of both the Constitution and the people it serves.
These questions emerge from expert views which may or may not be akin to the govt view, but nonetheless remain close to the general perception of the public: Does the President’s decision in disposing of a mercy petition fall within the ambit of judicial review? Does this issue of commutation of death sentences on the ground of delay attract Article 21 in favour of the three convicts?
Can keeping death-row convicts in suspense or delay in consideration of their mercy petitions by itself be a sufficient ground for commuting their death sentences? Did this case need a substantial interpretation of Constitution and ought to have been heard by a special Bench of five judges as per provisions of Article 145? Did the case of review petitions just merit a Bench of three judges ? If the apex court felt the mercy petitions had not been given due consideration, should those not have been referred back to the President for reconsideration?
While these nagging questions remain on the side of judiciary, the executive side faces a more serious, seething question - one of casualness, irresponsibility and clear political overtone. Why did the Centre file petition seeking review of the judgment when, for years, it had not considered the matter important enough for quick disposal? Why was the UPA regime struck by the unseemly bug only after the Jayalalitha govt proposed to release the convicts after remission of the remaining sentence, especially when the apex court had already stayed the CM's release proposal.
Though entirely for political reasons, the Tamil Nadu govt took a cue from the Supreme Court order and invoked its remission powers under section 432, 433 and 435 of the criminal procedure code to write to the Centre about its proposal to release the convicts. It was after an emotional reaction by Congress Vice- President Rahul Gandhi that the govt opposed the remission move in the apex court.
Then, did the UPA govt feel the load of Jayalalitha action too much to bear during election time? After all, the court had commuted the death sentences of these convicts to life almost 23 years after an LTTE human bomb assassinated Rajiv Gandhi at a poll rally in Tamilnadu. After the rejection of their mercy petitions in August 2011 by then President Pratibha Patil, the convicts moved the Madras High Court challenging the Presidential rejection and seeking commutation of death sentences, citing 11-year delay in reaching a decision.
The Supreme Court has now taken a serious view of the govt's attitude in forcing delays, causing mental torture to the convicts. After all, how much gap could possibly be considered reasonable between the apex court sending convicts to the gallows for a heinous crime and the President (better called executive) deciding on the formers’ fate? By any stretch of human consideration, not a decade really ! In this case, the top court found no merit in the govt's review petition on account of "inordinate delay" and dismissed the same, almost in the vein of a severe stricture against the Centre's power matrix.
The court also rejected the Centre's submission that there was no unreasonable delay in deciding the convicts' mercy pleas and that the condemned prisoners did not go through agonizing experience as they were enjoying life behind bars." The court found wholly untenable the govt's argument that “the interference of this court with the merits of the order of rejection issued by the President is without jurisdiction.”
But the main questions still remain: Do such cases involve a substantive interpretation of the Constitution, especially where the criminals had indulged in an inhuman, barbaric act and got relief merely due to failure of the top executive? And why does the political executive deliberately delay such decisions for reasons of vote bank, putting the office of the President to embarrassment ?