Friday, April 12, 2013

Living on Presidential lethargy

Inordinate Delay in Deciding The Fate of these Mercy Petitions Raises Concerns over The Consistency, Transparency and The Very Objective of these Procedures.

Timely trial. Well, that sounds some sort of an oxymoron in the Indian judicial system. But 25 pending mercy petitions with the President with some since 2003 is certainly more than unbelievable. There is no doubt that the hype that surrounds sentencing of capital punishment to convicts and mercy pleas cause a lot of stress on the President’s ability to take an objective decision under Article 72 of the Constitution that empowers the President of India to grant pardon or commute the sentence of a convict found guilty by court. But holding it for as long as eight years, for sure, sets a bad example for the system as a whole.

Perhaps, this is exactly what the Supreme Court (SC) vacation bench comprising Justices G. S. Singhvi and C. K. Prasad might have felt when it expressed ‘surprise’ over the delay and sought an immediate reply from the Delhi government on the matter. “The counter filed by Delhi Government will clarify as to why the petition for pardon has not been disposed of for last more than eight years,” the SC bench said.

However, the subject of ‘inordinate delay’, which can amount to a ground for Court to commute the death penalty under section 433(a), has some other contours which also deserve ample attention. These include reasons behind what constitutes delay, the impact of delay on the death row convicts, applicability and scope of fundamental rights protection to death row convicts and whether death sentence can be commuted into life on account of delay. The inordinate delay in the execution of the sentence is one circumstance, which has to be taken into account while deciding whether the death sentence ought to be allowed to be executed in a given case.

Without going into the details of how prolonged delay in deciding on a mercy petition could translate for the case and convict in question, former Chief Justice of the Delhi High Court A. P. Shah speaks in favour of timely trials. “There should be no doubt that a reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21,” Shah told B&E.

The issue has been a matter of debate for quite sometime and the politicisation of the case of Mohammad Afzal, who has been awarded the death sentence in the 2001 Parliament House attack case, only brought matters to fore. A. P. J. Abdul Kalam, as President, received Afzal’s mercy petition on October 4, 2006, and forwarded it to the Ministry of Home Affairs (MHA) for advice. Since then, the ministry has been examining the petition in consultation with the Government of Delhi. The MHA usually consults the state government concerned before submitting the mercy petition back to the President with its advice. The President’s powers under Article 72 are always exercised with the aid and advice of the Council of Ministers. The delay by the MHA to submit Afzal’s petition to the President with its advice indicates the dilemma the government faces in keeping the issue free of political considerations. Also, the apparent pick and choose policy adopted by the government (which is absolutely contrary to the stand maintained by the MHA) does not speak high volumes of the procedure in place as well. BJP has even termed the delay in deciding Afzal Guru’s petition (despite Guru himself asking for speeding up the process) as Congress party’s strategy to avoid a religious electoral backlash.


Source : IIPM Editorial, 2012.
An Initiative of IIPM, Malay Chaudhuri
 
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