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Precedent prevails over law in case of mercy petitions

February 12, 2013 15:29 IST

While convicts can move a petition challenging the delay in deciding a mercy petition, the court can only seek an explanation; it cannot direct the President to fix a time frame, reports Vicky Nanjappa

The hanging of Azfal Guru has raised many debates. The immediate reaction after his hanging was that there was a petition pending before the Supreme Court questioning the delay in deciding on his mercy petition and hence the execution was wrong.

Of late there have been many cases involving a death sentence going up before the Union and state cabinet for approval. There are three instances in which even high courts have stayed sentences on the ground that approval from the Union or state cabinets have not been sought. All these, however, are precedents and not a law as per the statute.

The law is very clear. A trial court sentences a person to death and it attains finality once the high court confirms it. The law provides for a right to appeal before the Supreme Court and then a mercy petition before the President. Once it reaches the President, he is the final authority and no order from a cabinet or court is binding on him.

The other debate is the time frame in deciding a mercy petition. The law does not provide for a time frame on this issue. The Supreme Court two years ago had said that mercy petitions should be decided in two months. However, this was not a directive but a suggestion, as the Supreme Court is not empowered to make laws; only the legislature can do that.

Let us look at two cases that have gained a lot of national interest in the past few years. The case of Rajiv Gandhi’s killers and that of Balwant Singh Rajoana, the man who killed former Punjab chief minister Beant Singh.

In the Rajiv Gandhi case, three convicts who have been condemned to death moved the Madras high court and obtained a stay on their execution. The high court said that while deciding the mercy petition, the President had only consulted the home ministry and not the council of ministers. While the high court under Article 226 of the Indian Constitution is empowered to pass such an order, the final action could only be to seek an explanation. A petition to this effect is not maintainable in law as the order attains finality once the President decides on the matter.

The high court can only make suggestions, but cannot reverse the order. While the convicts can move a petition challenging the delay in deciding a mercy petition, the court can only seek an explanation. It cannot direct the President to fix a time frame.

Another interesting aspect in the Rajiv Gandhi case is the resolution passed by the state assembly seeking to commute the sentence to life. This particular resolution came from an unexpected quarter, the All India Anna Dravida Munnetra Kazhagam, and was unanimously accepted in the state assembly in 2011.

In the Balwant Singh Rajoana case, the President accepted a clemency petition from Punjab Chief Minister Parkash Singh Badal and the execution was stalled.

Legal experts argue that this is just politics as the law does not say that the state or Union cabinets have a right to stall an execution.

Once a petition is before the President of India the decision is his sole discretion. Over the years a precedent has however been set where the matter is placed before the Union Cabinet and then before the state before a final decision is taken. Not all cases are high profile in nature and the President is not well-versed with all cases.

Cases such as the 26/11 Mumbai attack, Rajiv Gandhi, Beant Singh or that of Afzal Guru have made national headlines and hence the President is well-versed with the facts of the matter.

But what about those cases involving murders that are very state specific? In such cases, the President sends the file to the Union Cabinet for an opinion and they in turn seek assistance from the state government. This is just a process which has been adopted in order to be sure of the case before any decision on the mercy petition is taken. No where in the law books does it state that the government has to be consulted although nothing bars the President from seeking a consultation. If the President chooses not to consult the government it cannot be a reason to say the decision on a mercy petition is bad in law, say legal experts.

Lawyers say that such precedents although not part of the law book are in practice mainly because of politics. In both the Beant Singh and Rajiv Gandhi case there is a lot of politics involved and hence various procedures that are not mandated by law are introduced by the governments. A resolution may be passed by the state or the high court may grant a stay, but none of these are binding on the decision of the President which is final in nature. Even if the Union Cabinet were to say that the case is not fit for death sentence, it is not binding on the President to abide by what the government says. It is his independent decision at the end.

Legal experts would argue that a time frame ought to be fixed to decide on a mercy petition. Although the law fixes no time frame, a convict could still go before the high court seeking speedy disposal of the case under the basic principle that justice delayed is justice denied. In such a case the Supreme Court or the high court can suggest to the President or the legislature to speed up the matter, but not issue any directive as there is nothing in the law books.

Even after the President rejects a mercy petition there is no rule stating that an execution shall be carried out in a fixed time frame. Once the order is passed, the same goes before the trial court that earlier decided on the matter. This court then fixes the time in consultation with the jail superintendent, who informs the court the time required to make preparations to execute the sentence. 

Vicky Nanjappa in Bengaluru