The Supreme Court’s decision not to accept President’s delay in deciding on mercy petitions by death-convicts as justification for commutation may have opened up fresh arguments on the judicial and political fronts. The consequences could be as complex for State(s), the Centre and the nation’s ’federal structure’ as the conditions that prevail now on the political front.
In ruling that delays of the kind cannot be applied to exempt terror-case convicts or similar laws from the death row, a two-Judge Bench of Justices G S Singhvi and S J Mukhopadhaya has held that "such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes". The ruling came in the case of Devinderpal Singh Bhullar, who had been convicted and sentenced to death in a ’car-bomb case’, dating back to ’Khalistani terrorism’, in which 19 persons were killed in the heart of the national Capital, Delhi.
In Bhullar’s case, the Bench agreed that there was considerable delay in the disposal of his mercy plea. Much of the delay could be attributed to the "unending spate of petitions" filed on behalf of the prisoner. "It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of mercy petition as a ground for commutation of the sentence of death," the Bench said.
’Liberty’ and ’reasonable restriction’
Among those whose execution has been stayed for similar reasons are three in the Rajiv Gandhi assassination case, though the Supreme Court had finally ruled that the killing of Rajiv Gandhi was not a terrorist act and taken the case out of the purview of the Terrorist and Disruptive Activities (TADA) Act, since repealed. However, four associates of outlaw Veerappan are in a Karnataka prison after conviction under the TADA. Their petitions, citing delay in the President’s disposal of their mercy petitions, and against them, is pending before another Bench of the Supreme Court. It remains to be seen if and how the ’Bhullar case’ verdict would be applicable to them.
In the ’Bhullar case’, the Supreme Court could now be construed to have applied the ’reasonable restriction’ theory in the larger application of Article 14 of the Constitution, promising ’equality before law and the equal protection of the laws’. If that were the case, the issue might arise that the ’restriction’ now imposed on Bhullar by the court involved a major constitutional issue, and the matter should be heard by a larger, Constitution Bench of the Supreme Court. Similar pleas could also be made by the convicts in the other cases involved, either when their pending petitions come up for hearing.
It is also not unlikely that the Supreme Court might refer all those cases to a Constitution Bench should Bhullar’s defence decides to appeal the current verdict in that light -and the court finds merit in the plea. This might be different from the ’review petition’ that Bhullar might move, which however as per the court’s tradition could be heard only by the same Bench. Traditionally, most ’review petitions’ of the kind have been dismissed, as the defence invariably could not have been expected to present additional arguments not made when the Bench was hearing the original petition.
It was so in the ’Rajiv Gandhi assassination’ though in that case, the Special Investigation Team of the Central Bureau of Investigation (SIT-CBI) too moved a ’review petition’ after a Division Bench had ruled against ’terrorism’ charges under TADA. An academic argument did arise in the case -though no one pursued it -if the non-application of TADA meant the denial of a second-stage of appeal in the High Court. As may be recalled, to expedite early disposal of TADA cases, the law provided for direct appeals to the Supreme Court once the specially-constituted trial court had given its final ruling.
It is unclear if the Supreme Court’s current observation in the ’Bhullar case’ regarding the convict moving the court intermittently also referred to the series of interlocutory petitions filed by them either before the case had reached the trial stage, or even during the course of the trial. The convicts in the ’Rajiv Gandhi case’, which is also among the assassination trials in the country to have taken a long time for final disposal, cannot seek any relief now, if it pertained to delays caused by interlocutory petitions filed either by them or any of the 22 other accused, who were also sentenced to death by the trial court.
Of the four against whom the Supreme Court upheld death-penalty, the Tamil Nadu Governor had commuted that of Nalini, A-1 in the case after other co-conspirators had either died or their cases (LTTE supremo Prabhakaran among others) had been separated from the on-going trial at the time. Media reports had it that it was done mainly at the instance of Sonia Gandhi, wife of the slain Rajiv Gandhi, citing Nalini’s female child born in prison as justification.
Commutation, mainly based mainly on the plea of the victim’s family, if that is the case, is unknown to criminal jurisprudence in the country. If the argument had to be accepted, the views of others, including policemen and innocent bystanders, who died on the occasion, too might have to be sought and considered by the commuting authority (be it the President or the Governor). The Supreme Court, having held that the President’s powers on ’mercy petitions’ from death-row convicts, is ’objective’, not ’subjective’, Nalini’s case might still be a fit case for judicial review of the Governor’s decision.
It needs to be noted that Nalini’s pending petition for her freedom from prison, she having spent over 20 years in prison, could provide the occasion for a judicial review of the kind, should her defence persists with the current arguments under changed circumstances. Technically, likewise, it may be open to other death-row convicts in the ’Rajiv Gandhi assassination case’ and others, too, to cite the commutation of her death sentence, as Head of State decision’s of the kind are ’objective’ and capable of ’judicial review’.
The ’Bhullar case’ verdict now has given specifics that are different from acts of ’terror’. While the convicts of the ’Veerappan gang’ may not fit into any of the descriptive groups, that by itself may have opened up possibilities for his defence to argue all over again that they may not fall under TADA, either. If needs to be seen if there are any chances that the highest judiciary in the land would be impressed by such arguments, if and when proffered in the ’changed circumstances’, if there are any as applicable to the case.
All this apart, over the decades since the Constitution came into being, the Apex Court has defined and refined the description of ’Right to Life and Liberty’ under Article 21, to be of benefit to the non-State appellant or respondent, as the case may be. In the context of death-row convicts, whose mercy petitions have taken a long time for the deciding authority to dispose of, a new argument could thus be put forward. It also remains to be seen if Bhullar’s defence might argue against the court finding that the convict himself had delayed the process by moving intermediary petitions, which otherwise are granted under the law and as an extension of the constitutional provision of ’Right to Life’ and ’Equality before the law’.
Independent of the legal issues that have either been agitated already or are likely to be agitated in the future, the issue of presidential pardon is now steeped in political controversies, almost of a common kind -particularly in the case of those classified as ’terrorists’, as the ’Bhullar case’ verdict has now identified.
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