Is ministers’ ‘advice’ needed, asks SC
As the Supreme Court is set to examine the files of 18 death row convicts pending with the President next week, the top court has posed a vital question of law on the President and governors’ power of pardon whether they actually need the “aid and advice” of the council of ministers on the clemency issue, or can take an “independent” decision on merits of each case.
The apex court slated to examine the files on April 10 has posed the crucial question to the lawyers assisting it mainly in the backdrop of three layers of judiciary — trial court, high courts and the Supreme Court — taking on an average 15 years to decide a criminal case even if fell in the “rarest of the rare” category warranting award of death penalty. “There are umpteen number of instances that a case even if it falls in the ‘rarest of rare’ category takes five years in the trial court, five years in the high court and almost five years in the Supreme Court. When the President examines the file (on mercy plea) if says that the judiciary has taken 15 years, I commute the death sentence...”
“...Of course the President will function on the aid and advice of council of ministers... but there is a debate going on that President should take ‘independent and objective’ decision (on mercy petitions) in the light of the long time consumed in the courts. It is required to be examined,” a bench of Justices G.S. Singhvi and S.J. Mukhopadhaya told a battery of senior counsel assisting it.
Senior advocate Ram Jethmalani appointed amicus curiae in the case related to the delay on deciding mercy petitions by the President agreed that this vital question of law needed to be examined by the Supreme Court. “I will prepare a detailed note on the issue,” the told the bench.
The top court said this question has become vital in the wake of additional solicitor-general Harin Raval, appearing for the government squarely putting the blame for the “delay” on the judiciary as well.
The other factors for considering the question was that the convicted person even if found to be committing a crime of “rarest of rare” category might have become a “changed” person during the 15 years of gruelling legal procedure in different courts and later by the government in deciding the mercy plea, particularly in the crimes arising out of “political ideology”.
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