The Supreme Court’s verdict last week quashing the President’s rejection of a mercy petition by Mahendra Nath Das, who was to hang for a gruesome murder, shows a salutary approach to the question of whether a prolonged delay in disposing pleas for clemency should not be a ground for commuting death sentences to life terms. The court took note of the 12-year delay prior to the rejection of Das’s mercy plea. Of these, there were two spells of three and five years during which there was no explanation for why his file did not move. Another fact the court took note of was that President Pratibha Patil was “kept in the dark” about her predecessor, A.P.J. Abdul Kalam suggesting in 2005 that Das be granted clemency, as this was not mentioned in a summary prepared for her consideration. It held that the President was not properly assisted or advised. The principle that unexplained delay on the part of the executive will be a constitutional limitation on carrying out an execution stands reconfirmed by the Das judgment.
However, while considering the same question last month, the Supreme Court declined to commute the death penalty awarded to Devinder Pal Singh Bhullar, holding that as a terrorist, he could not be allowed to take advantage of the prolonged delay in the disposal of his mercy petition. In other words, facts and circumstances, which are often cited to distinguish one case from another, are irrelevant if what is involved is an offence under anti-terrorism laws. It is tempting to see the fact that the same Bench — comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya — delivered both verdicts within three weeks as ironical or contradictory. It isn’t really, for the Das verdict shows that the court is willing and able to decide a challenge to a Presidential rejection on merits, facts and circumstances as well as sound principles of jurisprudence. However, it may indicate a piecemeal approach on the part of the judiciary by which an expedient principle is laid down to defeat the case for mercy in some cases, while others are decided on facts and circumstances. A moot question is what future judges would do if similar circumstances are seen in cases involving terrorism. Will an unexplained delay of over a decade, coupled with the executive’s failure to place all relevant material before the President or to advise the incumbent properly, be brushed under the carpet merely because the individual to be hanged was involved in, say, a bomb blast or a political assassination? A wiser course is to avoid laying down rigid principles such as the ‘Bhullar rule’ against any mercy in terrorism cases.