No haste in disposal of mercy petitions, it says
The disposal of mercy petitions by President Pratibha Patil was neither carried out in “haste” nor was it an attempt to “play to the gallery,” the President’s Office said on Monday. It was reacting to the “criticism” about the number and the kind of offenders given clemency.
President Patil, during her five-year term, has commuted the death sentence in 19 cases, rejected the petitions of three and 10 are pending. The President’s Office said nine new cases for clemency were received by the President during her tenure; the remaining 23 were backlog from the previous years.
In a statement here, the President’s Office said while granting clemency to offenders, who include rapists and murders, Ms. Patil was discharging a constitutional obligation and not doling out generosity.
“While the power under Article 72 of the Constitution does not contain any limitation as to the time within which the power so conferred shall be exercised yet, the Supreme Court has observed in certain recent cases that delays in disposal of mercy petitions may be minimised and that the condemned prisoners have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time,” the statement said.
The decision to commute the death sentence of those accused of raping small children and murdering them has offended many. A judge requesting anonymity said: “There appears to be an element of arbitrariness and non-application of mind while disposing of these petitions termed rarest of the rare by the highest courts. There is also no reasonable answer to why clemency was given to such offenders. Also, when you commute the death sentence to life sentence, it sends a message to society that criminals can get away with anything. Life sentence is not deterrent enough.”
Supreme Court lawyer Pinky Anand said granting clemency to those convicted of rape and murders was a questionable situation. “It seems like a precursor to something larger, in future it could mean an era of clemency in questionable areas like terrorism.”
She said most of the people awarded death were macabre murderers and the courts did a lot of work before delivering the verdict.
The President’s Office, however, is piqued over the “allegation of non-application of mind” in the disposal of mercy petitions. Describing it as “factually incorrect and misleading,” it said: “The President has disposed [of] clemency petitions only after due examination on receipt of the aid and advice of the Home Minister. All the 23 backlog cases pertaining to the terms of the former Presidents were recalled and re-visited by the present Home Minister and fresh advice tendered for due consideration of the President.”
Pointing out that the decision to commute the death sentence was not taken arbitrarily by the President, her office said all the cases had been examined by the Home Minister and the mitigating and extenuating circumstances, specific reasons substantiating the Minister’s advice were all presented to the President.
And the nod for clemency came after the President “took well-considered decisions after having been fully satisfied that the government has tendered its aid and advice, properly and constitutionally,” said an official of the President’s Office.
Article 72 confers on the President the power to grant clemency. “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. The advice of the government is binding on the Head of State,” the President’s Office clarified.
Mercy petitions that had remained undecided for over a decade were also discussed in Parliament in February 2011 and the Central government had indicated its intent to expedite decisions on mercy petitions, the President’s Office said.
Right to seek clemency
On the criticism about rapists and murders being granted clemency, the Office said: “A queer pitch has been created as though many brutal criminals have been shown mercy and released. It is common knowledge that all death convicts seeking mercy are those who have committed ghastly and heinous crimes of the ‘rarest of the rare’ category. Nevertheless, the Constitution confers on them the right to seek clemency. When clemency is granted, the courts have held that it does not wipe out the offence or disaffirm the judicial verdict. By the exercise of the power of pardon, the President does not amend, modify or substitute the judicial decisions.”
Those campaigning for the eradication of the death sentence have however hailed the President’s orders. Colin Gonsalves, senior Supreme Court advocate, said: “It is the best news; the whole lot [people on death row] should be commuted to life. This barbaric practice [death sentence] should end.” Mr. Gonsalves said, “while sentencing death, the courts have to one, understand the nature of the crime, and second the state must lead evidence that the offender is incapable of being reformed.”