Any advice by govt. and consequent pardon were "vitiated by malice in fact and malice in law"
The Supreme Court on Monday issued notice to the Centre on a writ petition challenging the orders passed by the then President, Pratibha Patil, granting clemency and commuting the death sentence to life imprisonment in four cases of rape and murder of three minor girls and beheading of one boy.
A Bench of Chief Justice P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi issued the notice on a petition filed by Pinki Virani, whose counsel Shekar Naphade said the death penalty had been awarded to the convicts as all the four cases were “the rarest of rare.”
According to the petitioner, two of the convicts — Molai, a guard in a Central Jail, and Santosh, prisoner undergoing a sentence for an offence under Section 376 of the IPC — had togther raped and killed the Assistant Jailor’s 16-year-old daughter, who had been alone in her house, and dumped the body into the jail’s septic tank.
Satish raped a 6-year-old girl, who was on her way to school. The next morning her body was found with blood in the private parts and strangulation marks on the neck;
Bantu took a five-year-old girlchild from a religious ceremony to a field, where he raped her and inserted stems of plant and sticks in her private parts in the most barbaric manner. The child died of profuse bleeding.
Sushil Murmu chopped off the head of a nine-year-old boy as a religious sacrifice. Medical confirmation could not be had for sexual violation as the accused dumped the severed head in a gunny bag and threw it into a pond.
Ms. Virani said the death sentence awarded by this court to the convicts was required to be re-instituted by exercising its power of judicial review of the decision made by the then President under Article 72 of the Constitution.
The presence of these convicts even inside the jail was a menace to other prisoners there, and morally and otherwise hazardous to jail employees, she said.
“Most alarmingly, if they are out on a short-term parole, they will be an immediate threat to society and imminent danger to children.”
The petitioner said any advice offered to the then President by the Council of Ministers in four cases and her consequent pardon were “vitiated both on account of malice in fact and malice in law. In the matter of granting clemency — in the larger public interest, in the interest of the victims and/or their near and dear ones, and in the interest of both, the moral fibre and the physical safety of society — definite parameters are required to be laid down which can be applied for an objective assessment of each case by both the Ministry of Home and the President.”