In his interview to CNN-IBN, the Union Home Minister, Shivraj Patil shared an important piece of information relating to how President exercises his power under Article 72(1), to grant pardons, and to suspend, remit or commute sentences. The entire media missed this crucial aspect of the interview, even while assuming that his odd comparison of Sarabjit Singh, who awaits death sentence in Pakistan with Mohd.Afzal Guru, the Parliament attack convict, whose mercy petition is yet to be decided was the most controversial. I tried to get a link to the entire text of his interview with Rajdeep Sardesai, but I couldn’t.
In his interview, Patil said once a convict submits a mercy petition to the President, the Rashtrapathi Bhavan forwards the petition to the Ministry of Home Affairs, for seeking the Cabinet’s advice on the matter. The MHA then forwards the same to the concerned State Government for eliciting its views. It is only then the MHA formulates its advice and tenders it to the President, on behalf of the Council of Ministers. While Patil’s concern was to dispel the propaganda of the Opposition that the Government is soft on terrorism, and that is why it has not so far rejected Afzal’s mercy petition, his reference to the procedure involved in the exercise is a pointer to how such decisions are made. In a sense, it throws considerable light on the hitherto unexplored aspect of how the President decides the mercy petitions.
While the President can theoretically exercise his discretion under Article 72(1) (as the Constitution is silent on whether he was bound to consider the advice of the Union Council of Ministers), it seems a reasonable view to take that this power, like other powers of the President, is expected to be exercised on the advice of the Cabinet. In England, the sovereign invariably acts on the advice of the Home Secretary in this regard….and it is stated that on the outer side of the Home Secretary’s chamber in England certain words have been inscribed which emphasise the tremendous power of life and death which so comes to be vested in the Home Secretary. In many States in the U.S., the Constitution or the law has provided for Advisory Baords to advise the Governor in the exercise of clemency. (Constitution of India, by P.M.Bakshi, 6th Edn.p.100).
Therefore, it is a sign of maturity of Indian federalism, that both the President and the MHA rely on the views of the concerned State Governments, before exercising this power. The State Governments are likely to take into account the likely impact on public order in those States, if the mercy petition is rejected or accepted. Thus if the State Governments concerned recommend inaction as a way out, should the Centre be blamed? Soli Sorabjee, for instance, has argued in this column that the exercise of this power by the President should not be contingent on its possible impact on law and order in the State, and that the former should be free from such extraneous considerations. But what if Patil says is correct (I have no reason to doubt that it is not), then it is not wrong to assume that the exercise of power under Article 72(1) by the President is much more diffused than what the Constitution probably envisages. I am inclined to consider it as a positive sign of the willingness of the Centre to accommodate the States’ concerns while exercising this power.