NEW DELHI, 12 October 2006 — The Indian Supreme Court yesterday clipped the president’s power to pardon convicts on death row. The ruling came in the midst of a national debate on the death penalty after the family of a Kashmiri Muslim, sentenced to hang for plotting a 2001 attack on Parliament, appealed to President Abdul Kalam to spare his life.
The court stressed the need to take into account the emotions and sufferings of the families of victims while considering the mercy plea of a convict.
“Undue consideration of caste, political loyalty, religion are prohibited from being grounds for clemency. Clemency is not only for the benefit of the convict. President or governor has to keep in mind its effect on the family of victims and on the society as a whole.
“There has to be some requisite material to grant pardon and improper pardon is subject to judicial review,” the bench said. Comprising Justice Arijit Pasayat and Justice S.H. Kapadia, the bench yesterday set aside the order of pardon granted by the Governor of Andhra Pradesh to Gowru Venkata Reddy convicted in a murder case.
Reddy was reportedly pardoned due to his political connections — he being a politician and his wife a legislator. Initially, the life imprisonment handed down to Reddy for murdering Telugu Desam leader was reduced to 10 years by the court. Later, the then Governor Sushil Kumar Shinde, at present Union Power Minister, pardoned Reddy.
While ordering Reddy’s release, the governor had said that the period of five years and two months already spent in prison by him was sufficient. However, admitting the petition filed by sons of the deceased, the Supreme Court stayed Reddy’s release last year in November.
The top court bench ruled yesterday that since the president and governors are sole judges while exercising powers of remission of sentence, they must ensure that by granting pardon, public welfare is served better. Describing the power to grant pardon as “an enumerated power,” the court said: “The power to grant pardon is a prerogative power and not an act of grace.”
Asserting that supremacy of the rule of law must prevail, the court said that this required governance in accordance with law and rule of law is the basis of constitutional structure.
Afzal’s execution slated to take place on Oct. 20, which marks the last Friday of Ramadan, is unlikely as a decision by the president on whether to grant clemency usually takes months and sometimes years.
A spokesman for Kalam said the president had forwarded Afzal’s clemency petition to India’s law and home ministries for their advice.
“After the two ministries send us their views, then President Kalam could seek further advice from constitutional experts. As for today, we have no comments on the ruling,” the spokesman said.
A series of violent protests have erupted in Indian Kashmir calling for Afzal’s death sentence to be commuted.
Indian human rights activists and newspaper editorials also have urged mercy, saying Afzal’s crimes do not fit “into the rarest of the rare” category for which the death penalty is imposed in India.
