The government took 11 years to reject the mercy pleas of three condemned prisoners in the Rajiv Gandhi assassination case and 5 years to decide a similar request by Parliament attack case convict Afzal Guru but it told the Supreme Court that long pendency of such pleas could not be termed as cruel acts that added to the suffering of the person awarded death penalty.
"The pendency of mercy petition cannot be said to be an act of cruelty or an act which adds to the suffering of the prisoner. In fact, it is the pendency of the mercy petition which has given a lease of life to the prisoner, albeit in prison, until a decision is taken on the mercy petition," the ministry of home affairs said in an affidavit filed in the apex court on Friday.
"The court cannot prescribe a time limit for the disposal of the mercy petition after itself having found that in public interest, as per the procedure established by law, a convict must be deprived of his right to life," the ministry's affidavit filed through advocate T A Khan said in response to a PIL by NGO 'Justice on Trial Trust'.
The NGO had alleged that because of absence of policy, framework or guidelines for deciding mercy pleas of condemned prisoners, the government took an unduly long time to either commute the death sentences to life imprisonment or reject the request for mercy.
The ministry said the delay in deciding the mercy petition augured well for condemned prisoners. "Looking at it from the point of view of the prisoner, he would like his mercy petition to be allowed and if it is not allowed immediately, he would like his mercy petition to remain pending as long as possible and certainly not be rejected," it said.
It said time taken for disposal of mercy petitions depended on the number of such pleas submitted on behalf of the convicted person. But the delay could never be argued as ground for commutation of death penalty by the condemned prisoner before the courts, it added.
"Delay in disposal of mercy petition is not a mitigating circumstance for the commutation of death sentence and also does not reduce the gravity of the crime. The powers of the President (to allow commutation of death sentence to life imprisonment) under Article 72 of the Constitution are discretionary powers which cannot be taken away by any statutory provision and cannot be altered, modified or interfered in any manner whatsoever by any authority," the ministry said.
"No time frame can be set up for the President in this regard. Delay by itself does not entitle a person under the sentence of death to demand the quashing of the sentence and converting it into life imprisonment. Besides, no period can be fixed for determining whether the sentence of death has become unexecutable due to delay," the ministry said.
It said the rate of disposal of mercy petitions by the President during UPA-2 had increased. It said 28 mercy pleas were pending in October 2009 and five more were received between 2009 and 2011.
"After the new government was formed, in September 2009 it was decided to recall the cases pending with the President's secretariat for review in the ministry of home affairs, to assist in expediting a decision by the President of India in each case," it said.
"Recalling of the cases was not under a constitutional provision but an administrative decision to ensure fair and equal treatment of all cases and to assist in expediting a decision by the President. Till December 29, 2011, 27 mercy petitions were submitted/re-submitted to the President's secretariat. The President decided one mercy petition in November 2009, 4 in 2010 and 8 in 2011 (till December 29, 2011)," the ministry said.
"Thus, a total of 13 mercy petitions have been decided by the President since November 2009. As on December 29, 2011, 20 mercy petitions are pending under Article 72 of the Constitution, of which 16 are pending with the President's secretariat and 4 are pending with ministry of home affairs (including 3 new mercy petitions received in 2011)," it said.
Source: The Times of India, January 9, 2012
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