President Pranab Mukherjee, whose term expires in the middle of this year, is sure to make history as the first-ever president to assert his powers vis-a-vis the government, by rejecting its recommendations while considering mercy petitions of death-row convicts.
The president has, on January 1, commuted the death sentences of four convicts, to life imprisonment, in the Bara massacre case. They are Krishna Mochi, Nanhe Lal Mochi, Bir Kuer Paswan and Dharmendra Singh, also known as Dharu Singh.
In the Bara massacre, which took place in 1992, 34 upper-caste Bhumihars were killed allegedly by the activists of the Maoist Communist Centre, now CPI-Maoist, to avenge an earlier massacre of Dalits by the Bhumihars. Three of the four convicts who were sentenced to death in the case are Dalits.
While the Dalits were charged and tried under the draconian powers of TADA, the Bhumihars were not – they were only tried under the Indian Penal Code. Without the aid of the TADA confessions to the police, (on the strength of which the Dalits were convicted), the Bhumihars had no difficulty in securing en masse acquittals.
Official sources confirmed to The Wire that the president’s decision in this case is the second such instance when he set aside the government’s advice to reject the mercy petitions.
As the list of commutations shown in the official website of president’s secretariat shows, the previous commutation was in the case of Jeetendra, also kown as Jitu Nainsingh Gehlot, on September 18 last year. Since the commutation prior to this was in March 2015, one could infer that Gehlot’s commutation too was against the recommendation of the Union Ministry of Home Affairs.
According to sources, the president did so because the home ministry’s recommendation went against the Supreme Court’s judgment in Shatrughan Chauhan vs Union of India, delivered on January 21, 2014. The Supreme Court had held that undue and inexplicable delay in disposing the mercy petitions of the convicts by the president could be a valid ground for commuting a death sentence to life imprisonment.
However, the president’s exercise of his discretion in the matter, first reported by the Indian Express on Sunday, has raised an interesting and unprecedented constitutional issue.
Article 74 (1) of the constitution says there shall be a council of ministers with the prime minister at the head to aid and advise the president who shall, in the exercise of his functions, act in accordance with such advice.
A proviso to this sub-clause says that the president may require the council of ministers to reconsider such advice, either generally or otherwise and the president shall act in accordance with the advice tendered after such reconsideration.
In the two commutations of death sentences, once in September last year and now, the president appears to have thought it unnecessary to use this proviso and found that he was legally bound to follow the law laid down by the Supreme Court, rather than the recommendation of the union council of ministers.
This is because, as Yug Mohit Chaudhry, who appeared as the counsel for the death row convicts in the Shatrughan Chauhan case says, the law declared by the Supreme Court shall be binding on everybody within the territory of India, under Article 141. Equally, it is binding on the government as well as the president. Therefore, if a recommendation of the government is inconsistent with the law declared by the Supreme Court, the president is bound to follow the latter, Chaudhry says.
The two commutations on which the president decided – against the home ministry’s advice – are clear. The Supreme Court confirmed the death sentence of Gehlot on September 5, 2000, while in the case of four convicts in the Bara massacre case, on April 15, 2002.
The long delay in disposing the mercy petitions of these convicts would have clearly been a factor for commuting their death sentences, if the Supreme Court’s judgment in Shatrughan Chauhan, is a guide.
The Maru Ram precedent
Critics of the president may point out that the Supreme Court had in Maru Ram v Union of India, in 1980, had held that in deciding mercy petitions, the president is bound by the advice of the council of ministers under Article 74. While the judgment in Maru Ram was delivered by a five-judge bench, Shatrughan Chauhan was delivered by a three-judge bench.
But the president would be right, if he believed that the Maru Ram precedent is not relevant now because the question of advice tendered by the council of ministers being inconsistent with a law declared by the Supreme Court under Article 141 was not before the bench in Maru Ram.
A proud moment?
Why did the government not follow the Supreme Court’s judgment in Shatrughan Chauhan while recommending that the president reject the mercy petitions? Perhaps because it would then have to commute the death sentences of those convicted of massacring Bhumihars, a strong vote bank in the upcoming UP elections.
Whatever the government’s political compulsions in making its recommendations to the president to reject the mercy petitions of death-row convicts, without application of mind, Pranab Mukherjee’s quiet rejection of the government’s advice and the government’s tacit acquiescence to it have shown that it is indeed a proud moment in India’s presidency.