Pardoning Power of the President Should Not Be Questioned: Centre to SC

Centre on Friday told the Supreme Court that Courts should not inquire into a decision of the President’s Pardoning Power, saying that it is beyond the light of any question.

In an affidavit filed in the Supreme Court Centre said that the power to grant clemency is an attribute of sovereignty and Court ought not to inquire into the merits of the exercise of the prerogative.

Affidavit was filed as a response in compliance with the Supreme Court's Order dated November 18 2013. A Bench comprising Justices Ranjana P Desai and Ranjan Gogoi and headed by Chief Justice of India P Sathasivam issued a notice to it on a PIL challenging former President Pratibha Patil's decision to commute death sentence of five condemned prisoners in child rape cases. Live Law Report here. Contention of the petitioner Pinki Virani, a journalist, was that out of 35 cases, in which death sentence was commuted by Patil, five cases are relating to brutal child rape, and relief should not have been granted by the President in those cases. The petitioner questioned the former President’s decision saying the cases were shocking and death sentence be revoked and the convicts should be hanged till death.

Petitioner presented certain cases as glaring examples of how routinely the files were forwarded by state governments and Ministry of Home Affairs (MHA) for proposed pardon to the President without application of mind.

In one case, condemned prisoners Molai, who was a guard in the Central Jail, and Santosh, a prisoner undergoing sentence, had raped assistant jailor's 16-year-old daughter Naveen. They killed her and dumped her body in the jail's septic tank.

In 1997, the trial court granted life imprisonment but it was enhanced to death sentence by the High Court and the punishment was confirmed by the Supreme Court in 1999. In 2011, Pratibha Patil commuted the death sentence.

In another case, convict Satish had raped a 6-year-old girl who was on her way to school. The next morning, the body of the victim was found. Satish was awarded death sentence by a trial court in 2002, which was upheld by the apex court but it was commutted by the President in 2012.

In the third case, convict Bantu took a five-year-old girl from a religious ceremony to a field and raped her. He tortured her in the most barbaric manner and the child died of profuse bleeding.

Bantu was awarded death sentence in 2005, which was upheld by the high court in 2006 and by the apex court in 2008. But in 2012, his sentence was commuted by the President in 2012.

In the fourth case, convict Sushil Murmu chopped off the head of a nine-year-old as a religious sacrifice. Medical confirmation could not be conducted for sexual violation of the child as the accused dumped the severed head in a gunny bag and threw it in a pond.

Murmu was awarded death penalty by trial court in 2002 and it was upheld by the High Court and the Supreme Court in 2003. His death sentence was commuted by the President in 2012.

"The manner of consideration of a mercy petition lies within the discretion and prerogative of the President of India. The court in the exercise of its judicial powers must give due deference to the decision of another Constitutional authority. It is submitted that the exercise of power by the President is beyond the pale of question," Centre said in the affidavit.

It said in case of a decision being rendered in favour of or against the convict, the courts in exercise of the powers of judicial review ought not to nullify the decision of another Constitutional authority.