The Supreme Court on Tuesday rejected Yakub Abdul Razak Memon’s curative review petition, setting off the countdown to July 30, the date of his hanging. A few hours later, Memon, accused of criminal conspiracy in the Mumbai serial blasts of 1993, filed another mercy petition with the Maharashtra Governor. The outcome will be known soon.
On March 21, 2013, the Supreme Court delivered its verdict in the case. A year later, on March 14, 2014, the President's secretariat received the recommendation of the ministry of home affairs on his clemency petition. A month later, on April 11, 2014, the President rejected his mercy petition. This proposed execution — “to be hanged by the neck until death” — has once again focused attention on the politics of the mercy petition. I was compelled to examine the issue.
The data revealed that as on December 3, 2008, one mercy petition was pending since November 11, 1997, 15 between January 4, 1999 and May 14, 2014, and 12 between 2004 and till the end of 2008. In all, 28 mercy petitions were pending with the President of India.
The petitions were pending during the tenure of three governments — the United Front government headed by Inder Kumar Gujral, two NDA governments headed by Atal Behari Vajpayee and the first UPA government headed by Dr Manmohan Singh. They were also pending during the tenure of three Presidents: K.R. Narayanan, A.P.J. Abdul Kalam and Pratibha Patil. The first and the third were the first dalit and women Presidents of India, respectively while the second was the third Muslim President of India.
On June 26, 2012, the office of President Patil, in a widely reported press release, claimed, “The President is not supposed to act on her own judgment but is mandated to act in accordance with the aid and advice of the government in terms of Article 74 of the Constitution.” A constitution bench of the Supreme Court of India, while explaining the scope of Article 72 in the matter of Kehar Singh vs Union of India (1989) held: “The President in exercise of power under Article 72 is entitled to go into the merits of the case notwithstanding it has been judicially concluded. He can come to a conclusion different from that recorded by the court.” Why then the pendency?
Anyway, the pendency mounted. As on May 21, 2010, four mercy petitions were pending with the MHA and 25 with the President of India, after the President had commuted the death sentence of R. Govindaswamy on November 23, 2009. One June 23, 2010, the President’s secretariat in response to a Right to Information request confirmed that they were in fact 25 mercy petitions pending and in three cases the death penalty had been commuted to life benefiting nine death row convicts. By the end of her tenure, President Patil had commuted the death sentence in 19 cases, rejected three cases and 10 were still pending.
It was obvious that a closet debate was raging in the highest echelons of the Indian state about the efficacy of capital punishment. Nobody was unfortunately prepared to make it public. President Kalam was the only one who candidly expressed his discomfort with capital punishment, stating that deciding mercy petitions was the most difficult task for him as President. While President Patil has not articulated her views on this question, it was widely believed that for religious reasons, she too was diffident about capital punishment. It is widely believed so was late President Narayanan.
As Justice A.P. Shah had invited me to the consultation on death penalty, on July 11, 2015, to speak on arbitrariness in the application of death penalty, I decided to update myself because somewhere this entire play was buried in my subconscious. While re-reading old papers my office pulled up, a table from the website of Rashtarpati Bhavan came up. It stated that as of May 11, 2015, 24 clemency petitions had been rejected by President Mukherjee, two had been commuted to life and none were pending. Bingo!
Thus you had two paradigms — one across the tenure of three Presidents from 1997 to 2012 for 15 years, where pendency and commuting of death sentences was the rule and not the exception; and the current incumbent where upholding death penalty is the rule, commuting it the exception and pendency non-existent. It raised the obvious question: In the rarefied environs of the Indian state were there any institutional processes at work in deciding clemency appeals or did it only go by the personal and ideological predilections of the incumbent in office? Since the answer was negative on the presence of any institutional processes, the conclusion was that the process was arbitrary. The Supreme Court in Madhu Mehta vs Union of India (1989) had held that “Article 21 is relevant in all stages. Speedy trial in criminal cases though may not be fundamental right, is implicit in the broad sweep and content of Article 21. Speedy trial is a part of one’s fundamental right to life and liberty. The principal is no less important for disposal of mercy petitions.”
Chief Justice Bhagwati, in his famous dissent in the Bachan Singh case on capital punishment, observed there is no objective manner of awarding the death penalty and therefore it falls foul of Article 14. All of this left me wondering. The Bombay blasts took place in 1993, the wheels of justice cranked at a glacial pace with Supreme Court finally pronouncing its view two decades later. What if Memon’s clemency appeal had come up before the earlier Presidents and not Pranab Mukherjee? Does the issue of capital punishment not require a dispassionate debate in the public space?
The writer is a lawyer and a former Union minister. The views expressed are personal.
Twitter handle @manishtewari