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The Swing Vote

So the President has the final say on a mercy plea. Really?

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The Swing Vote
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Clemency Petition And After

Here is what happens to a petition for presidential pardon once it is filed:

  • The President accepts it and forwards it to the ministry of home affairs (MHA) for advice
  • The MHA routes it to the law ministry and state government concerned for opinion
  • Once the opinion is received, the MHA assesses it and formulates its advice for the President
  • After receiving the advice, the President can sit on the mercy petition. In fact, he can afford to not act on it at all.
  • Neither the judiciary nor Parliament has the power to force the President to hurry. There's no time limit, unlike in the case of parliamentary bills.

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Widows of the Parliament attack victims submit a memo to Kalam

Kalam had made clear his personal views on the death penalty following the Dhananjoy Chatterjee hanging, calling for an across-the-board review of all pending cases and a debate in Parliament. Dhananjoy, accused of raping and murdering a 14-year-old girl in Calcutta in 1990, was the last person to be hanged—in August 2004. Before his petition reached Kalam, the mercy plea had already been rejected by late President Narayanan. Kalam could do little to change the sentence, especially after the MHA sent back the same advice to him—that Dhananjoy's plea be rejected.

Around the same time, Kalam's suggestion prompted the justice department to do a review of all pending mercy petitions. It returned the files to Rashtrapati Bhavan. On each file, the recommendation remained unchanged—the plea was worthy of rejection. A persistent President is known to have informally discussed the plight of the death row petitioners with Union home minister Shivraj Patil, more than once. He even wrote to him, saying the MHA, in reviewing the cases, should consider the petitioner's age or the possibility of his reforming.

In the case of a petitioner, Shobhit Chamar, 74, Kalam is believed to have stated that his mercy plea merited acceptance since he is old, infirm and likely to die soon. Lodged in Bihar's Bhagalpur central jail, Shobhit—a murder convict—is the oldest mercy petitioner. His plea is now pending for ten years. The President, in one his discussions with Patil, admitted to having examined each clemency file and wondered why, in India, only the poorest of the poor were convicted for heinous crimes.

Sources said home ministry officials took up the matter of the presidential pardon with senior jurists. The feedback was a reiteration of constitutional law. That the death penalty had been delivered in these 20 cases guided by the Supreme Court's "rarest of rare'' principle and that there were no legal lacunae in the judgements.

If nothing else, Kalam rekindled the debate on the death penalty. He also put the focus back on the grey area of the scope and limitations of the presidential pardon. Article 72 of the Constitution gives the President "power to grant pardons, reprieves, respites or remissions.'' However, several apex court judgements, over the years, have ensured that he can act only as per the government's advice, as communicated by the MHA.

The Supreme Court, meanwhile, has sent an indirect signal on Afzal's mercy plea: pronouncing on an Andhra Pradesh case where a Congressman was pardoned, it said mercy can't be granted on political or religious grounds. More, it said a presidential pardon is open to judicial review. Last year, a convict whose plea is with Kalam filed a petition in the Madras high court, demanding commutation following an inordinate delay in deciding his clemency. Legal experts also predict a Supreme Court ruling that fixes a time limit for the President to dispose of a mercy plea.

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