No pardons please: Disposing mercy petitions has been President Mukherjee’s foremost legacy
In a recent interview, when asked what his legacy would be, President Pranab Mukherjee quoted Prospero from The Tempest and said that he would “leave not a rack behind”. His record in dealing with mercy petitions from convicts makes good his claim. Contrary to many of his predecessors Mukherjee disposed of 34 petitions, rejecting 30 of them and leaving none pending for his successor. Ironically, by literally leaving nothing behind, he leaves a clear legacy for future presidents to follow – reject mercy petitions in principle as an anachronism that has no place in the Constitution of a democratic republic.
The power of pardon, a prerogative power exercised by the sovereign of England, has been described as “the brightest jewel in the British crown, and the most precious of the rights of the people”. Representing the fiction that the sovereign was the embodiment of divinity, the power extended to commuting sentences and pardoning death row convicts, as he pleased.
Its practical workings however were less exalted and more mundane. As described by Vic Gatrell in The Hanging Tree, often judges themselves would commute death sentences, replacing them with transportation to America. When the sovereign was petitioned, usually the matter was dealt with by the home secretary without any fixed rules or procedures in this regard. The entire operation of the power to pardon was arbitrary and ad hoc, presumably because that’s how the English believed the Almighty worked.
In India, which established itself as a democratic, secular republic, the power to pardon ought to have been seen as a colonial relic. However, the mai-baap sarkar that soon took root seamlessly transplanted the provision into the Constitution, not because the President was expected to have shades of divinity but because he would act on the aid and advice of government.
This foundational belief was belied because the President often acted on his own, contrary to the aid and advice of his ministers. This was most apparent during the tenures of KR Narayanan and Pratibha Patil who disagreed with the home ministry’s recommendation to confirm death sentences in a majority of cases before them. More importantly, the very premise of this belief, that a democratic government could be the repository of mercy, was anathema in a Constitution built on separation of powers and the rule of law.
The death penalty, when awarded, is confirmed by multiple courts, including the Supreme Court, pursuant to a law made by Parliament. In such a situation, ordinarily no question of mercy ought to arise thereafter. Further, the Supreme Court itself through a series of orders, has made it amply clear that circumstances pertaining to the criminal – which presumably might be key considerations for granting him mercy – would be factored in while awarding the death penalty.
Sentencing guidelines laid down in Bachan Singh (1980) required the court to take into account every relevant circumstance relating to the crime as well as the criminal; Machhi Singh (1983) required the sentencing court to draw up a balance sheet of aggravating and mitigating circumstances and Gurvail Singh (2013) drew up the crime-criminal-rarest-of-rare test holding that “to award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused.”
For the President, and by extension the government, to sit above the Supreme Court, take similar factors into account and overturn the court’s decision appears to be a case of bypassing the rule of law and unjustifiably breaching separation of powers in the process. In practice, the overwhelming rate of rejection of mercy petitions, whether for commutation or remission, is evidence that it holds out a hollow hope to convicts.
Further, as noted by the Supreme Court in a judgment overturning the rejection by Mukherjee of the mercy petition of 15 convicts, the delay in disposing of such petitions is often tortuous for death row convicts. At the same time, the presence of such a constitutionally sanctioned escape clause for convicts may putatively be a reason for the courts handing down a large number of death sentences, often erroneously.
The real question for a democratic republic like India to consider is whether the death penalty for the crimes for which it is sanctioned, provides an effective deterrent for potential offenders in today’s sociocultural milieu. By taking the surest step yet towards relegating the pardoning power to a meaningless constitutional footnote by desuetude, Mukherjee has hopefully left a legacy that forces us to ask and carefully debate this critical question.
Further, contrary to some of his predecessors who raised this question implicitly by disagreeing with the recommendations of the government and consequently keeping files pending, Mukherjee has, by all accounts, largely followed the advice of the government. By doing so, he has articulated his vision of a restrained presidency – a figurehead towards whom the country looks to for guidance, inspiration and moral counsel, not decisions. In a political atmosphere, where assertion is the norm, he leaves a legacy of dignified restraint worthy of emulation.
In parting, just as many times in his long political career, Mukherjee has bowled the country a googly – leaving behind two clear legacies while not appearing to leave any.
Comments
Post a Comment