Contrary to popular perception, the President's power to decide on mercy petitions of death row convicts is not discretionary, but he is bound by the advice of the council of ministers, making it a collective government decision.
The debate was reignited after President Pranab Mukherjee rejected the mercy petition of the lone surviving attacker of 26/11 Mumbai terror strike, Ajmal Kasab, which set the ball rolling for his hanging.
Faced with persistent queries from various courts of law and frequent criticism from the opposition parties, former home minister P Chidambaram had sought the law ministry's opinion on the entire issue of President's power to decide on mercy pleas of death row convicts by a trial court and confirmed by a higher court.
The government's legal arm, in its advisory opinion, stated: "The question posed by the home minister finds its answer in two Supreme Court judgments, which clearly state there is no discretionary role and President's power on whether to commute death sentences or not, has to be exercised on the aid and advice of the council of ministers."
Elaborating its stand, the ministry said, "The President exercises his/her own opinion in only two matters -whom to invite for the formation of a new government and in appointment of judges. In this complex matter, which involves a virtual review of the country's top court verdict, the executive has to take a collective decision. "
In response to Chidambaram's query whether the President can commute a death sentence into life imprisonment, the then law secretary, TK Viswanathan wrote :"Yes, Article 72 of the constitution confers upon the President power to grant remission of punishment or commute the sentence of any person convicted of any offence."
The law ministry, however, made it clear that life imprisonment did not mean 14-year imprisonment.
It stated, "The sentence of life imprisonment when awarded as a substitute for death penalty means that the convict would not be released for the rest of his life or atleast until the 20 year jail term was actually carried out."