Courts have decided crores of cases since Independence but President has to decide only 300-odd pleas: judge

The Centre on Tuesday justified the President's decision to reject the mercy petition of death row convict Devinder Pal Singh Bhullar, who wants his sentence commuted to life imprisonment on grounds of “inordinate delay” in carrying it out.

Additional Solicitor-General Harin Raval told the Supreme Court: “The discretion, viz. whether to grant clemency or not, rests with the highest constitutional functionary, not a small-time officer. The court cannot issue a mandamus to the President.”

When Justice G.S. Singhvi asked him to explain the 11-year delay in taking a decision on Bhullar's clemency plea, Mr. Raval blamed it on government processes which took time. “The President sends all cases which carry political connotations or arouse a heightened public interest to the Secretary, Home Ministry, for his comments. If court delays can have immunity, why not government delay?”

Annoyed at this submission, Justice Singhvi questioned the government's commitment to the judiciary and allocation of funds for dealing with the explosion of cases. Courts had decided crores of cases since Independence, but the President had to decide only 300-odd mercy pleas, the judge said.

Mr. Raval, however, insisted that the President had taken a call on Bhullar's plea after going through material on his innocence or guilt, prompting the other judge on the Bench, Justice S.J. Mukhopadhaya, to observe “These are factors to be taken into account during conviction, not at the stage of mercy plea.”

Bhullar, convicted for his role in the blasts targeting Congress leader Maninderjit Singh Bitta, sent his mercy petition to the President's office on January 14, 2003 but it was rejected only on May 25, 2011, after the court issued notices to the Centre asking it to explain the delay. Nine people were killed in the blast and 29 others injured. Mr. Bitta, however, escaped.

Justice Singhvi asked the ASG whether the government had taken into consideration factors such as Bhullar's conduct in jail and whether he had reformed himself during that time. “Even Chambal dacoits have reformed. Phoolan Devi reformed, she became a member of Parliament. [A] huge element of subjectivity is involved in the decision to take away the biggest gift of nature — human life. The chart shows that some years, the pendulum swung to one extreme, in others, it swung to the other extreme and some years it remained static. This too by the top constitutional functionary,” the judge said.

Justice Singhvi also wanted to know why Bhullar's medical report, who is allegedly suffering from psychiatric illness, was not submitted to the President by the Centre at the time of its forwarding his mercy plea.

Even if the court were to explain away the initial delay during the years of terrorism in Punjab, what was the government doing from 2005 to 2011 when terrorism had abated in the State? “Non-consideration of relevant facts could be a ground for judicial review,” the Bench said.

Change of circumstances

The Bench pointed out that during that period Parliament had replaced TADA with the less draconian POTA and then repealed POTA. That was eventually replaced with the Unlawful Activities (Prevention) Act. Circumstances had undergone a sea change. Everything was tempered by mercy. “Even if the government was serious about terrorism and it had escalated during 1984, later when it decreased, did it make any attempt to deal with his mercy plea,” Justice Singhvi asked the ASG.

Justice Singhvi also drew the ASG's attention to foreign governments writing to the Indian government, appealing to it not to hang Bhullar: “Does it not amount to interference in our system? It is a serious matter. Are they trying to influence us?”

Original communication

The Bench wanted the Centre to place before it the original communication of the European Union and the German government on the issue.

Arguments will continue on Thursday.

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