A piquant situation has arisen with the Supreme Court staying the execution of eight death row convicts whose mercy petitions were rejected by President Pranab Mukherjee last week.
A writ petition filed on their behalf, challenging the rejection of their clemency pleas, was heard by a Supreme Court bench on a holiday as the petitioners feared they would be executed on Sunday morning. This suggests that challenging the judgment of the President in the matter of pardon is maintainable in the eyes of the country’s highest court, regardless of how it may eventually dispose of the case.
A common feature of the eight cases is that their mercy pleas were lying with Rashtrapati Bhavan for many years, in one case since 1986 — over a quarter century. Several questions arise. Would the Supreme Court have entertained the prisoners’ writ petition if the President rejected their clemency pleas in a reasonable time? Clearly, nothing in our law binds Rashtrapati Bhavan to a time frame. Or is it the case that the President’s action in such a matter is justiciable, no matter what, irrespective of the time factor?
There is another dimension as well. None of the eight cases in which the Supreme Court has chosen to place the President’s action — or appreciation of the situation — under scrutiny relates to terrorism or waging war against the state. How would the court have dealt with the matter in such cases? We have the cases of Afzal Guru (Parliament attack of 2001) and Ajmal Kasab (2008 Mumbai attacks) before us. In both instances, Rashtrapati Bhavan took a long time to act. If the whole question is to hinge only on the issue of presidential delay, as appears to be the case, then Kasab and Guru logically deserved the same benefit as the eight whose matter is before the court.
Another question also arises in the backdrop of the expansion of the ambit of judicial action in recent decades. Should the Supreme Court suo motu take up the case of all convicted prisoners whose clemency plea is turned down, even if a writ petition has not been filed? As so many questions arise, can it be argued that the very idea of a presidential pardon has outlived its time?
There also appears some merit in the argument that if the state is all right with a death row prisoner continuing to live for many years on account of presidential sloth, it can just as well do so till the end of the natural life of the prisoner. That leads, logically, to the question of abolishing the death penalty altogether. As a state and society, the time may have come to grapple with issues of this nature.