In a judgment which is not without implications, the Supreme Court on Friday rejected the petition of Devinder Pal Singh Bhullar, who had sought commutation of his death sentence after the rejection of his mercy petition by President Pratibha Patil. The ground for reprieve was that the President had taken eight years to dismiss the plea for pardon.
The country’s highest court noted that a delay by Rashtrapati Bhavan could not be a ground for commuting a death sentence. It also observed that the petitioner had not made out a case for commutation. Only last week a batch of eight writ petitions was entertained by the Supreme Court apparently on an emergency basis, each seeking commutation on the same ground as Bhullar. Seeing the way the Bhullar case has gone, it will be a surprise if the eight may expect the outcome they are hoping for. Similarly, eight other death row cases may go the same way if they can cite no other ground for their prayer other than delay by the President in disposing of appeals for presidential pardon.
But it is noteworthy that the Supreme Court has in no way indicated that the President’s action of dismissing a mercy petition is not justiciable. In the Bhullar case, it merely pointed out that a prayer for commutation had not been made out by the petitioner. But if it had, we may infer, the court would have considered it.
However, in the Ranga-Billa case (1981), the Supreme Court had pronounced that the power of the President to deal with a prayer for reprieve by a death row convict was “discretionary”, and that the Rashtrapati was not required to offer an explanation. In the Kehar Singh case (1988), the court’s view was that the very word “pardon” sought from the President was indication enough that the issue at stake was a matter of presidential “grace”. The implication is that this cannot be subject to judicial scrutiny. The caveat that may be entered is that the action of the President in rejecting a mercy plea does not suffer from non-application of mind.
Contrasting the stance of the Supreme Court in the 1980s with the position adopted in the Bhullar case on Friday, it appears that it is not yet a settled question whether the President’s action in the matter of granting or withholding pardon is subject to judicial review. In this intervening period of some three decades, Indian society’s view in such matters can also be thought to be evolving, and perhaps that is having some effect on the higher judiciary.