Answering a significant question of law, the Madras High Court on Wednesday held that the President, while granting clemency to death convicts, can impose a condition that they should be imprisoned till their death, without being accorded the benefit of remission for any reason whatsoever by the State government concerned.
Justice N. Anand Venkatesh held so while dismissing individual writ petitions filed by three death convicts — A. Sheik Meeran, C. Selvam and V. Radhakrishnan — who had been incarcerated for the last 24 years and had therefore questioned the condition imposed by the President while granting them clemency in February 2012.
Conducting the case for the petitioners, their counsel M. Radhakrishnan argued that a plain reading of Article 72 of the Constitution did not state that the President was empowered to impose conditions while granting pardon and suspending or remitting sentences in cases such as those in which capital punishment had been imposed. He contended that the very fundamental principle of criminal law, which was to reform and rehabilitate the guilty, would pale into insignificance if convicts were not allowed to step out of prisons even after they stood reformed. He also contended that any scheme for premature release of convicts should be made available to all convicts without discrimination.
The counsel also argued that the condition imposed by then President Pratibha Devisingh Patil, while granting clemency to the three petitioners, was arbitrary, unfair, unreasonable and in violation of fundamental rights under Articles 14 (right to equality before law) and 21 (right to life and personal liberty) of the Constitution.
Rejecting all contentions, the judge concurred with Additional Solicitor General (ASG) G. Rajagopalan that the sovereign power conferred on the President, to grant pardon without wiping out the conviction by a court of law, was of the widest amplitude, and that judicial review on the merits of the President’s decision was ordinarily impermissible.
There was a succinct distinction between the judicial power to pass sentence and the executive power to grant pardon, Justice Venkatesh said and added that while granting State pardon, the President acted on a completely different plane and therefore he/she was entitled to go into the merits of individual cases though they had been judicially concluded. The scope of judicial review of a decision taken by the President under Article 72 was very limited and narrow. “What falls within judicial review is only the decision-making process in a given case and not the decision per se. If a court does not find that the process was not arbitrary or unreasonable, the decision taken by the President cannot be interfered with,” he said.
The judge said that, as rightly argued by the ASG, the pardon as well as the condition came as a package. “It has to be taken either as a whole or it must be dropped as a whole. The convicts cannot be permitted to take the beneficial portion of the pardon in their favour and at a later point of time, turn around and question the condition that comes with the pardon,” he concluded.
In so far as the present case was concerned, the three petitioners had been awarded death sentence by a trial court in 1998 for murdering Ayyavoo, a gangster, in front of a Judicial Magistrate inside a court hall at Nagercoil in December 1994. The High Court and Supreme Court confirmed the punishment in 1999.