The Supreme Court’s recent decision to institute a larger Bench to consider commuting the sentences of death row prisoners is both a nudge to the political establishment and an attempt to navigate the court’s own muddled pronouncements on mercy petitions. It is no secret that clemency pleas to the President have been gathering dust, some for decades, at Rashtrapati Bhavan. Many on death row suffer this torturous wait for mercy — by any measure, an affront to human dignity — only to find their petitions eventually dismissed. Another long wait for the execution follows, unless their death, like that of Ajmal Kasab or Afzal Guru, is hastened because of political expediency. Through its decision to review death row cases marked by uncharacteristic delay, the court has made it clear to the executive that its powers of pardon must be exercised like any administrative action: in a reasonable and non-arbitrary manner. While the court will consider each plea on its merit, the hearings, it is hoped, will produce a sound jurisprudence to guide future cases. So far, the Supreme Court’s verdicts on this count have been confusing and contradictory. While rejecting the plea of Devinder Pal Singh Bhullar in April 2013 — on account of his being a ‘terrorist’ who deserved no leniency — the SC, a month later, commuted the death sentence of Mahendra Nath Das, convicted of a gruesome beheading, despite both their clemency pleas having been rejected after inordinate delay by former President Pratibha Patil. The court’s reasoning in the latter case — that the President had failed to consider the Home Ministry’s recommendation to commute Das’s sentence — has cut no ice with anybody.
That said, the Supreme Court’s intervention must not give way to the law of unintended consequences: its attempts to commute delayed executions should not prompt the government to hastily reject pending mercy pleas. Already, the Central government has expressed its displeasure at the judiciary’s attempts to ‘dilute’ the scope of presidential pardon under Article 72 of the Indian Constitution. Moreover, since assuming office last year, President Pranab Mukherjee has rejected clemency petitions at an alarming rate. The executive, shy to test political waters through decisive action, has for long sat on mercy pleas. Now it seems to have swung to the other extreme, in an attempt to ‘clear the backlog’ of such petitions. The United Progressive Alliance must have the courage to respond favourably to the pleas of death row convicts, many of whom have long been kept alive only to die. The upcoming hearings offer the government and the court an opportunity to institutionalise the commuting of death sentences, pending the eventual abolition of this abhorrent form of punishment.