Way back in the year 1978, Sunil Batra, a convict in a sensational bank robbery cum murder case awaiting confirmation of death sentence, moved the Supreme Court complaining about the agony of waiting and living in solitary confinement while his appeal against the conviction was pending. Apart from laying down the law, the apex court’s landmark judgment

in this case gives a vivid description of the condemned prisoner’s cell. The conditions must be the same now. The mercy petition of Devender Pal Singh Bhullar, the Khalistan movement terrorist and now a condemned prisoner, has been pending before the President — which in reality means the Central government; the President has no option but to accept what home ministry recommends — for the past eight years. He moved the Supreme Court on May 23, 2011, virtually pleading to be hanged — choosing not to have his fate remain hanging indefinitely. The apex court asked the government, “Why has the petition for pardon not been disposed of for more than eight years?”
A long gap between pronouncement of death penalty and execution, for reasons not attributable to the convict, is itself a ground for commuting the sentence as declared by the apex court time and again. Not surprisingly, therefore, the government chose to reject Bhullar’s mercy petition to avoid the near impossible task of explaining the inaction. Unfortunately for the government, the matter may not rest here — Bhullar may move to the court again, this time demanding reduction of sentence on the ground that he was made to suffer agonising eight years for no fault of his. And so, this endless loop of a convict forever on death row and a government not commuting sentence or executing will play on.
Home minister P. Chidambaram told the Rajya Sabha recently that 25 mercy petitions were pending, of which 23 had been processed by his ministry but are “now pending in the Rashtrapati Bhavan”, since 1988. Rajiv Gandhi’s assassins are also in this queue. The mercy petition of the Parliament attack convict Afzal Guru is also still pending with the home ministry.
Several legal aspects relating to mercy petitions are well settled; one of them is that the President has to act only in accordance with the advice of the home ministry. The most important decision of the Supreme Court relating to the power of the President under Article 72 of the Constitution was in the case of Kehar Singh, one of the convicts in Mrs Indira Gandhi’s murder case.
Keher Singh’s mercy petition was originally rejected with the remark that the executive had no power to review a case on merits after the highest court in the land had pronounced its judgment — that was how the law was understood then. Thereafter, on his behalf, a petition was filed questioning the view taken on the scope of the President’s power.
The court pronounced, “The President in exercise of power under Article 72 is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by the Supreme Court.
The power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. He can, on scrutiny of the evidence on record in the criminal case, come to a conclusion different from that recorded by the court with regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact and undisturbed”. This declaration of law holds the field.
Accordingly, the President has the power to “re-scrutinise” cases when faults are pointed out — but there is no obligation to do so in every case. The court, in the process of interpreting Article 72 conferring far-reaching powers on the head of the state, rightly wanted the power to be meaningful and not a mere formality.
In the case of Kehar Singh, the then home secretary, late C.G. Somiah, promptly decided that his ministry had no desire to re-examine the Supreme Court’s verdict when no one had pointed out any error. The clemency petition was rejected without delay.
Mercy petitions are often filed by third parties — so-called “friends” or relatives of the convict and, in some cases, politicians who have discovered a lucrative profession of sponsoring mercy petitions before governors who enjoy the same power as the President. The Supreme Court recently had occasion to administer caution in a case from Andhra Pradesh — Epuru Sudhakar’s case (2006).
H.S. Kapadia, the present Chief Justice of India, had declared, “Pardons, reprieves and remissions are manifestations of the exercise of prerogative power. They are not acts of grace.
They are part of constitutional scheme. When a pardon is granted it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed”. He proceeded to add, “An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant — these are prohibited grounds”.
Desirability or otherwise of death penalty will always remain a subject of endless debate. In India, its legality was decided by a five-member bench of our Supreme Court in Bachan Singh’s case (1980) where Justice Sarkaria, speaking for the majority, held, “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”. This was how the concept of “rarest of rare case” was born.
The law, therefore, is clear. And the death sentence is given only in the rarest of rare cases after due process. The problem at hand is how to avoid non-implementation of the laws — whether through misunderstanding, lethargy or subterfuge.
Soon after Bachan Singh’s case, the death sentence against the notorious Ranga and Billa was confirmed by the Supreme Court without using the phrase “rarest of rare”. The court urged the President to dispose of the pending mercy petition expeditiously, which was done. In the case of Afzal Guru, courts concurrently held him guilty and the Supreme Court rejected the review and curative petitions. The attempt to destroy a whole nation by eliminating the entire political leadership en masse is indeed the “rarest of rare cases”, notwithstanding the mercy petition signed by over 300 self-appointed guardians of human rights. One wonders what is left for the executive to reexamine in this case, particularly when each day of indecision doesn’t just prolong the agony of the convict but also exposes the country to a Kandahar type of extortion or encourage a dangerous chorus with communal connotation.

K.N. Bhat is a senior advocate of the Supreme Court and former Additional Solicitor General of India