The Hindu Business Line : Why a sentence should not be disturbed?

The power to commute death sentence vested in the President by the Constitution bristles with possibilities. It is not that it has been abused by any occupant of the august office. But like with any discretionary power, its existence is frightening.

The campaign to commute to life the death sentence of Mohammed Afzal, convicted in the Parliament attack case lends urgency to the need to do away with this power vested with the Centre. Besides being amenable to abuse a la the power vested with the Commissioner of Income-Tax to impose penalty ranging from 100 per cent to 300 per cent of the tax sought to be evaded by an assessee, isn't the presidential intervention an attack on the independence of the Judiciary? After all the Home Ministry, which examines and disposes of the mercy petition addressed to the President, is not even a quasi-judicial authority like the commissioner of income-tax.

Affront to judiciary

The existence of an Executive dispensation that can overrule the verdict of the highest court even on compassionate grounds ought to be construed an affront to the judiciary. After all, the Constitution itself has prescribed checks and balances to ensure that the death sentence is indeed awarded only in the rarest of rare cases by providing for mandatory confirmation by the High Court of such sentence awarded by the trial judge.

In fact the rarest-of-rare case guidepost, implicit in the Constitution was made explicit by the Apex Court. Experience shows that the person condemned to the gallows invariably goes the whole hog and appeals to the Supreme Court against the confirmation order of the High Court.

This is all the more reason why a sentence, which passes the litmus test of the due judicial process and passes its microscopic scrutiny at three stages, should not be disturbed.

There is a view that death sentence itself should be given the quietus mainly on the ground that there might after all been miscarriage of justice which did not come to light during the entire judicial process. The anxiety articulated in any posthumous revelation of extenuating circumstances warranting a lighter punishment or none at all would be a slur on the justice system that cannot be undone or revoked.

The existential dilemma of death sentence may have to be resolved once for and all, maybe by appointing a Law Commission exclusively for this purpose. But as long as the Constitution provides for it, the Executive's whims and fancies should not be allowed to trifle with such a sentence especially when it has traversed the entire judicial process.

Epilogue: The Apex Court's recent verdict setting aside the pardon granted by the then Andhra Pradesh Governor, Sushil Kumar Shinde, could not have come at a more opportune time because the President is seized of the clemency application filed by the family of Mohamed Afzal, the convict sentenced to death for masterminding the terror attack on Parliament, and this should be construed as a last-minute supply, as it were, of basic guidelines for reviewing such petitions.

It has not only drawn the broad parameters for pardon — religious, caste and other extraneous considerations should not be brought to bear upon the decision one way or the other — but, more important, held such decisions to be subject to judicial review.

The Apex Court has subtly but clearly told the Executive that if it grants pardon to Mohamed Afzal on the specious ground that Kashmir could go up in flames, it won't remain a mute spectator. Time will tell whether this would pit the Executive and the Judiciary once again on a collision course.

(The author is a New Delhi-based Chartered Accountant.)

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