In a highly unusual intervention in 2010, the Union home ministry sent a strongly worded letter to President Pratibha Patil. The letter contained an opinion by then attorney-general Goolam Vahanvati on the long list of mercy petitions from death row convicts that were awaiting a decision. The ministry was exasperated at the lack of response from Rashtrapati Bhavan on the petitions, and the letter made it clear that the President was bound by the advice of the council of ministers (in this case the home ministry) and she would have to act.
Getting no response, then home minister P. Chidambaram and prime minister Manmohan Singh sought time with the President, urging her to act on the mercy petitions. Patil offered a valid justification. She was going by the record of her predecessors. President K.R. Narayanan (1997-02) received 10 petitions but disposed of only one. A.P.J. Abdul Kalam (2002-07) inherited nine petitions, another 16 were added during his term. He disposed of only two out of 25. Kalam, like Pratibha Patil, was against the death penalty.
In contrast, Pranab Mukherjee is one President who has been proactive on the subject, rejecting 24 mercy pleas and commuting only two in the three years he has been in office. The last two hangings after mercy petitions were rejected by the President were of Pakistan terrorist Ajmal Kasab (November 2012) and Afzal Guru (February 2013).
Apart from the president’s action or inaction, lengthy delays in procedure and prosecution are one reason why 15 death sentences were commuted to life by the Supreme Court in January 2014. Yakub Memon is an exception, but it has led to judicial reviews becoming routine for other death row convicts. In fact, most mercy pleas are now under judicial review on grounds of inordinate delay because successive presidents have failed to take a decision. “There is no ambiguity in the law because, as per Article 74 (1) of the Constitution, the President is bound by the aid and advice of the council of ministers, and is bound by the advice the government gives and that holds true for mercy petitions as well,” says Anup Surendranath of the National Law University.
A study by the university says that nearly 94 per cent of those convicted are either Dalits or from a religious minority. What’s more shocking is another finding by the university. Just five per cent of death sentences handed down by the lower courts are actually confirmed by the Supreme Court.
The death penalty is a grey area for more reasons than just the fact that it’s usually the poor who face the gallows as they can ill-afford a good lawyer. Former home secretary G.K. Pillai says, “The death penalty should be abolished because, in the Indian context, it is creating more problems than it is solving. Look at the case of Rajiv Gandhi’s killers. Besides, there should be a time limit for presidents: they should have to give a decision within, say, 30 days. Otherwise, it will be deemed as given. The real problem begins when presidents sit on a mercy plea.”
Pranab, however, has been accused of just the opposite, signing off nearly one mercy plea a month since he took office, including that of Yakub Memon, which was done within a month of the file being sent by the MHA. Nevertheless, the damage is done. Many convicts have managed to breathe easy thanks to procrastinating presidents.