New Delhi: The Centre on Monday told the Supreme Court that courts should not inquire into a decision of the President to grant pardon to a convicted person, saying the power of the head of the executive is beyond the pale of question.
"The power to grant clemency is an attribute of sovereignty. The court ought not to inquire into the merits of the exercise of the prerogative," the government said in its affidavit filed in the apex court.
The response was filed in compliance with the apex court`s order which had on November 18 issued a notice to it on a PIL challenging former President Pratibha Patil`s decision to commute death sentence of five condemned prisoners in child rape cases.
"The manner of consideration of a mercy petition lies within the discretion and prerogative of the President of India. The court in the exercise of its judicial powers must give due deference to the decision of another Constitutional authority. It is submitted that the exercise of power by the President is beyond the pale of question," it said.
It said in case of a decision being rendered in favour of or against the convict, the courts in exercise of the powers of judicial review ought not to nullify the decision of another Constitutional authority.
"If the courts are to nullify the effect of President`s order after such a decision is taken by him, it would amount to sitting in appeal over the decision of the President and substituting it with a judicial decision, which could never be the intention of Constitutional makers," it said.
The apex court had in November last year agreed to hear the PIL, filed by journalist Pinki Virani, questioning the then President`s decision to commute the death penalty in the cases of extreme brutality.
She had contended that out of 35 cases in which death sentence was commuted by Patil, five cases are pertaining to brutal child rape and submitted the relief should not have been granted by the President in those cases.
Questioning the decision taken by the President, the petitioner submitted these are shocking cases and death sentence should not have been revoked.
The petitioner had contended these convicts are a menace to society and if they are out on short-term parole they will be an immediate threat to the people.
"The five convicts are guilty of gruesome and socially abhorrent crimes and therefore do not deserve Presidential pardon. The death sentence awarded by this court to the convicts is required to be re-instituted by this court by exercising its power of judicial review of the decision taken by the President under Article 72 of the Constitution," the petition had said.
She pleaded these cases were glaring examples of how routinely the files were forwarded by state governments and Ministry of Home Affairs (MHA) for proposed pardon to the President without application of mind.
In one case, condemned prisoners Molai, who was a guard in the Central Jail, and Santosh, a prisoner undergoing sentence, had raped assistant jailor`s 16-year-old daughter Naveen. They killed her and dumped her body in the jail`s septic tank.
In 1997, the trial court granted life imprisonment but it was enhanced to death sentence by the High Court and the punishment was confirmed by the Supreme Court in 1999. In 2011, Pratibha Patil commuted the death sentence.
In another case, convict Satish had raped a 6-year-old
girl who was on her way to school. The next morning, the body of the victim was found.
Satish was awarded death sentence by a trial court in 2002, which was upheld by the apex court but it was commutted by the President in 2012.
In the third case, convict Bantu took a five-year-old girl from a religious ceremony to a field and raped her. He tortured her in the most barbaric manner and the child died of profuse bleeding.
Bantu was awarded death sentence in 2005, which was upheld by the high court in 2006 and by the apex court in 2008. But in 2012, his sentence was commuted by the President in 2012.
In the fourth case, convict Sushil Murmu chopped off the head of a nine-year-old as a religious sacrifice. Medical confirmation could not be conducted for sexual violation of the child as the accused dumped the severed head in a gunny bag and threw it in a pond.
Murmu was awarded death penalty by trial court in 2002 and it was upheld by the High Court and the Supreme Court in 2003. His death sentence was commuted by the President in 2012.