Beginning next week, the Supreme Court is expected to consider the pleas of 18 prisoners on death row, whose mercy petitions have all been rejected by the President of India. The Court has assigned itself a limited mandate: the cases will be reviewed primarily on the basis of Rashtrapati Bhavan’s delay in acting on the clemency pleas. At the heart of the matter is a classic tussle between the executive and the judiciary. The Supreme Court, by commuting the death sentence in some or all cases, will send a strong signal to the government that its errant treatment of mercy petitions can no longer continue. Already, the Court has expressed its displeasure at the hasty manner in which Afzal Guru was executed, without providing his “relatives an opportunity to meet [him] for one last time.” The government in turn will argue the presidential power of pardon — sanctioned by Article 72 of the Constitution — is beyond the Court’s scrutiny. The stakes are high: how the Court disposes of these pleas could well determine the fate of A.G. Perarivalan and two others convicted in the Rajiv Gandhi assassination case. The trio were made to wait for a staggering 11 years before their clemency pleas were considered — and rejected — by then President Pratibha Patil.
If it institutes a larger bench to hear these pleas, the Supreme Court will embark on an unprecedented exercise that will reinvigorate the national debate on the death penalty. Chief Justice P. Sathasivam must be commended for following through on his call for “authoritative pronouncements” on hangings and mercy petitions. Beyond the issue of delay, human rights advocates will doubtless use this platform to highlight how clemency pleas have been turned down without due consideration. The Court itself has opened the door for this argument through its decision in Sushil Sharma v. State of N.C.T. of Delhi . If, as the Court has held, the possibility of reformation is indeed a criterion to determine if a case falls within the “rarest of the rare” category, is it not the government’s imperative to consider the conduct of death row prisoners? Nothing can make for a more powerful case to abolish the retributive practice of death sentences than the reformation of individuals convicted of heinous crimes. Our prison system is notorious for spawning recidivism. If prisoners can not only survive a tortuous wait on death row — thanks to government indecisiveness — but are found to have emerged the better, the Supreme Court should not hesitate to commute their sentences.
