Mercy Petitions - Just Not Justice

India the largest democracy in the world is governed by the Rule of Law. The Laws of the country provide for death penalty to be awarded for certain offences by following due process of law. As a safeguard to prevent undue harshness or occasional miscarriage of justice, the Constitution provides that a Mercy Petition could be made to the President of India (or Governor of State) for clemency in respect of punishment awarded by the judiciary. (A background article on Mercy Petitions related to capital punishment cases is given here)

A Mercy Petition is made after the arduous journey of a case through the judicial process right up to the Supreme Court. While the entire judicial process in its very nature takes a long time, there is little reason for decisions on Mercy Petitions to take an inordinate length of time.

Over the last nearly fifteen years, around 30 petitions for clemency have been made to the President. It was only after a discussion on Mercy Petitions gathered momentum in the wake of death penalty awarded on 6th May 2010 to Ajmal Kasab, one of the terrorists involved in the 26/11 terror attack on Mumbai that the public really became aware that virtually no decisions were being taken on petitions made for so many years earlier. A total of 27 petitions are understood to be pending at present either at the Home Ministry or the President’s Secretariat.

A review of the information that has been highlighted in the media in the last two months shows an apparently indifferent approach on a serious subject involving decisions by the highest constitutional authority, the President of India. It also shows how those in government who are supposed to deal with the matter resort to misleading the people and their insincerity in doing their duty to preserve the Rule of Law.

The focal role of the Home Ministry

The prime responsibility for making recommendations to the President lies on the Ministry of Home Affairs (MHA) to whom the Petitions received by the President are referred. The Ministry is expected to deal with each petition expeditiously. For inexplicable reasons the Ministry takes many years to frame its recommendations to the President and its approach is best appreciated from the views of the Home Minister, on whose general or special directions the recommendations are finalized by the Judicial Division. Let us try to analyze the views of two successive Home Ministers in regard to the case of Afzal Guru. This is a case, which can be a classic case study, in which the indifferent or deliberately dilly-dallying approach of the concerned authorities is clearly visible. It is not an isolated case but is a typical and prime example.

Afzal was convicted in the Parliament attack case of 2001 and his death sentence was confirmed by the Supreme Court in an appeal on Aug. 4, 2005. His wife filed a Mercy Petition on 4th Jan. 2006 before the President who sent it to the MHA on 4th Oct. 2006 for advice. His execution date fixed by the Sessions Court for 20th Oct. 2006 was stayed on the basis of the mercy petition. A curative petition subsequently filed in SC by him was disposed off on 12th January 2007. The progress of his petition may have caught the attention of everyone partly for having been politicized but mainly because he was sentenced in the Parliament attack case of 2001. For nearly four years, the Petition has been left undecided.

Shivraj Patil and Chidambaram

Shivraj Patil a miserable non-performer was the Home Minister for four and half years from May 2004 till Nov. 2008. His casual approach on Mercy Petitions like everything else becomes clear from his statements in the Parliament when agitated members raised the matter about the status of the Petition made on behalf of Afzal Guru. Responding in the matter in both houses on 12/13 Dec, 2006, on the eve of the anniversary of the Parliament attack, he almost gloated that no Mercy Petitions were decided before six to seven years, implying thereby that he was not under any obligation to speed up any process. In the Rajya Sabha he said:

"मगर मैं यह बताना चाहता हूँ, उस पर हमारे उधर बैठे हुए साथी उत्तेजित न हों, की हमने जो गए दस सालके आंकड़े निकाले हैं, उसको देखते हुए मैं आपको बताना चाहूँगा की कोई mercy petition छह साल, सात साल से पहले डिसाइड नहीं हुई है..."
(After having seen the figures for last ten years, I would like to inform you that no mercy petition has been decided before six years, seven years..)

Earlier, in Lok Sabha on 12th Dec. 2006 he had said:

"..उस चीज को ध्यान में लेना बहुत जरूरी है की एस प्रकार की जब एप्लीकेशंस, क्लेमेंसी पिटीशंस आती है तो सुप्रीम कोर्टने उसमें कहा है की अगर आप उसको क्षमा करेंगे तो भी सही ढंगसे नहीं करेंगे तो भी वे देखेंगे और क्षमा नहीं करेंगे और सही ढंगसे नहीं करेंगे तो भी देखेंगे. इस हालत में पूरी तरहसे जांच पड़ताल करके जो कदम उठाना जरूरी है वही उठाने को हमने सदन में एक नहीं अनेक दफा बताया गया है. "
(When such clemency petitions are received, it is very important to keep in view that the Supreme Court has said that if you grant clemency and do not do so properly, we shall review and if you do not grant clemency and do not do so properly, then also we shall review. In such a situation, whatever step has to be taken has to be done after full examination..)

It was a statement designed to make the people believe that the recommendations took time as the fear of a review by SC called for detailed study of the matter (but not otherwise). The power of SC to review a presidential decision on mercy petition is very limited and regardless of the power of the SC, a responsible government would, in any case, have to consider every matter carefully especially in a life-or-death matter. It cannot be cited as a reason for delay but was simply an attempt to obfuscate the issue.

Much later in May 2008 when asked about the petition, he went off on a tangent equating Afzal Guru’s case with that of Sarabjit Singh, an Indian in Pakistani prison retorting: “If you are asking for Afzal Guru's hanging, then how can you ask for pardon for Sarabjit Singh?" Here was the Home Minister suggesting that Afzal would have to be pardoned in exchange for the pardon of Sarabjit Singh. Then in August 2008, in an interview, he had placed the blame for the delay squarely on the Delhi Government.

Mercifully, Patil was forced to resign soon afterwards in November 2008 in the wake of the Mumbai Terror attack. Now, it is interesting to understand the thinking of the present Home Minister, Chidambaram on Mercy Petitions.

In an interview in April 2009, two responses by him on Mercy Petitions in general and Afzal Guru’s petition in particular are significant:

In one part he said: “In my view, remaining on death row is more severe punishment than suffering execution”. In response to a question of not fixing time limit for deciding mercy petitions, he said: “Because there is the larger issue that death penalty itself be replaced with life sentence without parole.”

These are extraordinary statements coming from a Home Minister which by implication suggest that the Government is perhaps, not in agreement with the law of the land and may be deliberately delaying decisions. Is it a design to frustrate unconstitutionally what the laws made by society and judgments pronounced by the courts ordain?

A few days thereafter on 15th April 2009, he gave a lame excuse just like his predecessor that “Mercy petitions in India are examined through well established procedures resulting in a delay in implementing death sentences”. Well, it goes without saying that the petitions would be examined everywhere, not only in India, through well established procedures but that certainly cannot take as much time as the judicial process. Interestingly, according to the Home Ministry, no written procedures exist.

But apart from the Afzal case, it is difficult not to conclude that the procedures are anything but objective or systematic even in other cases that come before it. Take the case of Govindasamy whose death sentence was confirmed by SC in 1998 and his Mercy Petition made in the same year was rejected in October 1999. It was resubmitted in June 2005. President Kalam, overreaching himself, accepted his plea in Sept. 2005 but Patil rejected the same as being devoid of any valid or new grounds and that there was no arbitrariness in disposal of mercy petitions. Finally, Chidambaram who once again recalled the file, recommended commutation to life sentence in October 2009, possibly under political pressure from Tamilnadu and Govindasamy’s sentence was commuted to life imprisonment in January 2010. At least 10 other Petitions have been recalled and resubmitted to the President more than once.

When Chidambaram took over, he had announced that all pending cases would be reviewed and resubmitted to the President. The repeated resubmission and reconsideration prima facie indicates either arbitrariness or uncertainty in the decision making or non-application of mind. Be that as it may, the delay in acting upon the petitions and in deciding whether they may be accepted or rejected is simply unconscionable.

Role of Delhi Government in Afzal’s case

Continuing with the case of Afzal Guru, the role of the Delhi Government specifically, the CM Sheila Dixit has, indeed been quite curious considering her casual behavior all along which shows utter disdain for public accountability.

The case was referred to the Delhi Government by MHA on 4th October 2006, asking for all records of the case as well as the Lt. Governor’s comments on the Petition. Between 4th Oct. 2006 and 28 Apr. 2010, the MHA sent 16 reminders to the Delhi Government (20 according to the Home Secretary) without receiving the comments. Even for furnishing the records related to the case – an administrative task requiring no application of mind – the Delhi Government took over three years to send these to the Home Ministry. The entire sequence of events clearly indicates that it was delay by design while the Delhi administration, particularly the CM continued to come up with unconvincing explanations or near lies to mislead the public.

Tejendra Khanna and Sheila Dixit

For example, on 18th Jan. 2007, the Delhi Chief Secretary Narayanswami said “Once the mercy petition is filed, the social aspect of the case gets increased. These are serious matters and we are taking into consideration the social aspect in the case”. He also said “such issues can not be wished away in a hurry”. Much later on 25th Sept. 2008, an indifferent Sheila Dixit said “We will reply to the MHA whenever the time is appropriate.” Two months back on 17th May 2010, when asked about a letter which the Ministry had sent to her Government, she said “I have not received any letter. Maybe the Home Department (of the Delhi government) received it”. Another galling statement the next day was “The letter goes from one department to the other. Neither the ministry writes it nor do I receive it. Moreover, that file has already gone”. On 21st May, Delhi Govt. sources hinted that the delay was due to the Commonwealth Games and it wanted to delay the response till the Games were over to ensure that the games went smoothly. Later, on 24th May Dixit said “I had said during the (Lok Sabha) election campaign last year that we have not cleared the file because it is a sensitive issue," She also attributed the delay in clearing the file to the opinions given on it by two Chief Secretaries of her government over two years back, in which they had supposedly raised the issue of law and order implications “if the execution is carried out here.” Pertinently, while one Chief Secretary had referred to the issue in his note in Dec. 2007, his successor had already since then said in January 2008 that “the government should ask for the Supreme Court’s verdict to be upheld”. Later, she said that, Jammu and Kashmir chief minister Omar Abdullah also said that there could be law and order problem there if Guru was hanged knowing fully well that it is none of her business and that it is for MHA to take into account such views, if at all they are given. When it finally prepared the reply for the Lt. Governor’s approval, the Delhi Govt. said "implications of law and order may not be in Delhi particularly, but the overall picture needs to be kept in mind" a needless comment which prompted the Lt. Governor to seek clarifications before he finally sent out the comments to the MHA.

When on 6th June 2010 a question was posed to her if she was asked by Patil to keep the matter pending even if the Home Ministry sent frequent replies, she said “May be what you are thinking is true”. About there being political pressure, she said “'Political pressure was there and wasn't there. I cannot say anything more on this” This completely contradicts Patil who had placed the onus of delay squarely on her in an interview in August 2008 (see earlier). One of them is resorting to a complete lie or a half lie. Even if Patil had asked her to delay a reply, there were still five more reminders sent to her from 23rd January 2009 to 27th April 2010 long after he quit. This response in particular raises a very serious question about the functioning of both the Governments according to constitutional norms and this must be given close consideration. First, could Patil have advised Dixit to ignore official letters from his own Ministry when the Ministry was duty bound to get the comments of the State Government? Even if he did, could Dixit have, instead of protesting at the suggestion, meekly followed his advice at the risk of being accountable for failing in her own constitutional responsibility as CM? If either or both of them did any of this, the conclusion is inevitable that they would not have taken the risk of deliberately delaying the process without political direction of someone higher than both, but not the Prime Minister. This aspect needs to be inquired into closely.

Others in Central Government

Not only the Home Minister but also others including the Prime Minister have tried to obfuscate the fact of Government’s deliberate delays at least as far as Afzal’s case is concerned. On 24th Oct. 2006, a few weeks after the Petition was sent to the Home Ministry by the President, the Prime Minister had said "The legal process is on. The due process will be followed. Law will take its own course," Three and half years later, on 25th May 2010, on completion of the Government’s first year in office, he did not have anything more to say. “There is law of the land and legal processes should be allowed to have their course,” he replied in response to a question. In actual fact, the process of Mercy Petition under the Constitution begins when the legal process and legal rights have ended.

Adding his two bits worth, Home Secretary Pillai said on 23rd May 2010 "Afzal Guru is in the queue (of mercy petitions in the president's office). Nobody will be expedited," The question of jumping the queue would not simply arise if the earlier petitions were disposed off in time. Law & Justice Minister Moily said on 12th June 2010 “The law has to be addressed; the process has to be addressed. The process by which mercy petitions are dealt with has to be addressed as a system,” he said. “I am going to address those problems as a system.” Now, everyone knows what needs to be done and the question is simply: Why is it not done, whether in the case of Afzal or anyone of the other 28 petitions is the issue.

The President's Office

Even more unfathomable is the fact that the President’s Secretariat just sits on the Petitions where recommendations have been sent by the Ministry, by simply not acting upon them. There is a delay for no reason at all.

In the last 30 years 77 petitions have been disposed off by the President and only in 10 of these was the sentence commuted to life imprisonment. In last 15 years only 12 petitions were disposed off, of which only three were disposed off after January 1, 2004. Only in three cases was clemency granted. At present there are two petitions from 1998 and five which were made as early as 1999 but some of these were re-submitted more than once since. Based on the latest available details, a total of 29 petitions were pending with either the President’s office or the Ministry of Home Affairs of which, two were disposed off last month. The Ministry has claimed that as of now only the Afzal Petition is pending with them and three have been called back from the President, meaning that all other Petitions are with the President’s Secretariat after the MHA recommendations.

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Four Presidents

Dr. Shankar Dayal Sharma, himself a Ph.D. in Law, President from 1992 to 1997, took care to dispose off Petitions submitted to him in time. In the time of his successor K. R. Narayanan till 2002, no Petition was cleared at all, except one, that of Govindasamy which was rejected as per the MHA advice. However, his execution was stayed at that time by the NDA government on pressure from DMK. This left 12 files for Dr. Abdul Kalam which number grew over time. He had referred 20 petitions which were already recommended for rejection to the UPA Government which assumed office in 2004 for possible review. The MHA stood by its earlier recommendations. Even thereafter, he reiterated his suggestion for showing mercy to all the convicts concerned with a note giving his own suggestions. During his time, only two petitions were cleared, that of Dhananjoy whose petition was rejected and he was hanged in 2004 and Kheraj Ram, whose sentence was commuted to life. With the petitions received during his tenure, the number of petitions pending till May 2010 stood at 29 involving 52 convicts. The present President since July 2007, Smt. Pratibha Patil, is not keen to reject any petitions at all and has only cleared only three petitions, one in 2009 and two in June 2010 where the sentences were commuted to life. In fact, in July 2009, she wanted to be apprised of the government’s stand on death penalty, especially in view of the large number of representations received from individuals and organizations such as the Amnesty International and the UNCHR for abolishing death penalty in the country. “Before she takes a view on the issue, she intends to hold discussions with the Prime Minister,” said a source in her Secretariat. But as long as the Government’s thinking is reflected in the MHA recommendations, the President cannot hold up decisions based on such considerations at all. A meeting by the Home Minister with her has also not changed the situation. In fact, the President had made it clear that while her predecessors were reluctant to reject mercy petitions, the onus of clearing the backlog is not upon her. A proposal by MHA to clear one petition every month has also not found favor. The PMO in a futile exercise had sought details of pending petitions as early as Sept. 2008.

The President is a creature of the Constitution. The Constitution is supreme and every Constitutional authority including the President is subservient to it. The President knows that in the discharge of his normal functions, he does not have to act on his own except in rare constitutional events related to formation or continuance of a government. His decision cannot be influenced by personal opinion or belief system as he is obliged to discharge his duties on the aid and advice of the Council of Ministers. If the Minister concerned advises that a petition should be accepted or rejected, he is bound to abide by the advice. The most he can do is to require the cabinet/minister to reconsider the same but is bound by the advice received after such reconsideration. It is also submitted that when the Constitution says that he shall act in accordance with such advice, it also implies that he is bound to take the required action and not sit on the advice. If such logical inference is not drawn then it would mean that in practice the President can simply frustrate any such advice simply by not acting upon it as is apparently being done now. It is submitted that not acting on an advice for no reason at all itself amounts to arbitrary action and can become the subject of a judicial review.

If the person occupying the position has any moral constraints, it is only fair that he does not choose to be President in the first place. It is extraordinary that now the President decides selectively not to act upon the advice received. It should be remembered that when a President rejects a mercy petition, firstly, it is not his personal decision but is based on the advice from the Minister and secondly but more importantly, he is not the one actually awarding the death penalty. The punishment has already been awarded by the judiciary. In rejecting the Petition, the President merely says that the petition is not deserving of mercy. There is, therefore, no cause for any moral dilemma on the part of the President.

Moreover, every matter that comes before the President as part of his normal function is of equal importance, whether it is legislation that has been passed or a recommendation in regard to a Mercy Petition and there is no reason for placing one matter in a bottom drawer or top drawer. All matters need to be treated with an even hand. It is expected that the President of the largest democracy is discriminating enough to understand the true role of his office in the entire process.

A Serious Issue

It has been held by the Supreme Court that the Court may consider whether there was undue delay in disposing off a mercy petition, whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay may be a significant if not the sole factor in considering whether a death sentence deserves to be commuted to a life sentence. If the effect of the procedures for dealing with Mercy Petitions is such as to enable those who have been given death sentences to claim commutation just by the default of the State, then it strikes at the very root of our Constitution and the system of jurisprudence. The power of clemency is expected to be utilized with great care and if an order is given in an arbitrary manner, it can become the subject of a judicial review. As things stand now, we are facing an unacceptable situation where the power appears to suffer from arbitrariness and capricious non-exercise or delay first with the Ministry and then with the President. Clearly, this is far removed from the Rule of Law that we want to swear by.

The larger issue deserving serious consideration is: Whether there is an unstated or implicit Policy of the State or a deliberate delay which frustrates the Rule of Law and overrides the Judicial Process by dealing with Mercy Petitions in a way that judicial decisions on death penalty are effectively negated? The provision for Mercy Petitions is made to take care of subjectivity and fallibility in the judiciary. But the procedure followed at present for considering them suggests that not only is this process subject to subjectivity and fallibility but also politics, whims and fancies and sweet will are added factors which may prevent true justice. It is emphasized that the issue is not about one particular petition which has acquired a rather disproportionate importance for the time being but it is about the larger context which relates to the general approach of constitutional authorities in dealing with Mercy Petitions.

It is neither fair to the judicial process nor does it provide justice – to the families of the victims and the society at large or the petitioner, in cases where mercy is deserved.

And finally

From 1997 onwards, till date there has been only one case in which capital punishment has been carried out i.e. Dhananjoy in 2004. While the people are discussing only the few cases where mercy petitions have been made, what happens to the over three hundred confirmed death penalty cases where the convicts are still not executed for years? Do the Governments at the Center and the concerned States not owe an explanation to the society as to why the sentences are not being carried out? Are the Governments simply abdicating their responsibility of executing the punishment awarded by the Courts in cases of capital punishment? If this situation remains, regardless of any rejections of mercy petitions, there would be little likelihood of these convicts ever receiving the punishment that justice provides for them. Can we then say that we have not the Rule but Misrule of law?