Days before she demits office, President Pratibha Patil is in the eye of a storm over presidential pardons. In the last week of June, the outgoing president commuted death sentences of as many as 35 convicts to life — among them are those convicted of murder, kidnapping and rape. Annoyed at the
criticism, the president’s office clarified that the pardons were given on the advice of the home ministry.
The president is correct. The Supreme Court had ruled that pardon under Article 72 should be exercised on the advice of the Centre, since it is an executive action. The home ministry should have explained the special considerations that led them to recommend pardon of these 35 accused. This should be done urgently since Patil is retiring soon.
Moreover, when the home minister had all the time for such unlikely pardons, I wonder why he did not look into the other pending cases: Afzal Guru, Santhan, Murugan and Perarivalan (who conspired to kill Rajiv Gandhi) and Balwant Singh Rajoana.
Some of India’s former presidents had formulated their own guidelines on death sentence. President APJ Abdul Kalam, who had 25 mercy petitions pending before him, dealt with two: rejecting one and pardoning the other. He took keen interest in laying down the criteria for consideration of the petitions. Kalam also made detailed queries from the home ministry about the economic background of the accused and whether the accused got proper legal help. President KR Narayanan also chose a similar role: he disposed one out of 10 petitions pending before him. President Shankar Dayal Sharma rejected all 14 mercy petitions filed before him.
These examples show that while dealing with mercy petitions, presidents are influenced by their personal views on the death penalty. A certain amount of arbitrariness in granting pardons is bound to creep in. For people like me who advocate the abolition of the penalty, even a messy policy of pardons is welcome. As BR Ambedkar had said: “I think that the proper thing for this country to do is to abolish the death sentence altogether.”
After the ‘rarest of rare’ doctrine for the death penalty was propounded in 1980 by the apex court, it confirmed in 40% cases between 1980 and 1990, whereas it was 37.7% in 1970-80. For the high courts, the figure confirming the death sentence rose from 59% in 1970-80 to 65% during 1980-90.
The vociferous opposition to the abolition of the death penalty springs from the myth that it can lead to a spurt in murders. Facts show otherwise. In 1945-50, the state of Travancore, which had no death penalty, had 962 murders whereas during 1950-55, when the death sentence was introduced, there were 967 murders. A United Nations survey in 1988 concluded that there was no evidence to show that executions were greater deterrents than life imprisonment. Britan abolished the death sentence in 1965. The membership of the European Union depends on the abolition of the death penalty. So far, 139 countries have abolished the death penalty and 150 have put a moratorium on it.
The Mahatma once said: “I cannot in all conscience agree to anyone being sent to the gallows, God alone can take life because he alone gives it.” Must the land of the Mahatma continue to retain the death penalty?
Rajindar Sachar is a former chief justice of the Delhi High Court
The views expressed by the author are personal