Not a matter of faith, but of state!

Mercy petitions can't be decided by Pratibha Patil's 'religious beliefs'

The President of the Republic of India is not the head of Government, but the titular head of state whose decisions and actions are governed by the ‘advice’ of the Union Council of Ministers, headed by the Prime Minister. In his or her official capacity, the President performs ceremonial duties, many of them a legacy of India’s colonial past, and is designated Supreme Commander of India’s armed forces. That apart, the President is the custodian of the Constitution of India and is bound by oath of office to protect and uphold its provisions, unless Parliament decides to amend any one of them. But even amendments moved by the executive and approved by the legislature cannot change the basic character of the Constitution which lays down that India is and shall remain a secular republic. By implication, no decision or action of the state can be dictated by the faith or religious beliefs of those in authority irrespective of the office they hold.

If media reports are to be believed -- and they have not been denied by Rashtrapati Bhavan so far -- President Pratibha Patil is said to have ‘informally’ communicated to the Ministry of Home Affairs that because of her religious beliefs she will not turn down mercy petitions of criminals on death row forwarded to her. Seen in this context, Ms Patil’s decision to commute the death sentence given to nine persons held guilty by the Supreme Court of committing heinous crimes deserving capital punishment into life term in jail, if influenced by her religious beliefs, is at once both outrageous and downright dangerous. The law of the land allows those sentenced to death to file mercy petitions to the President. Contrary to popular belief, the President does not unilaterally decide on mercy petitions. They are studied by the Ministry of Home Affairs and the Cabinet takes a considered view, which is then communicated to the President, who either apends his or her signature to the decision or returns the file for a second opinion. If the Government sticks to its decision, the President is bound to sign on the dotted line or, if he or she feels morally compelled not to agree with the advice of the Council of Ministers, keep the file aside; in the extreme, the President has the option of resigning from office. It would be in order for the Government to clarify whether it had decided to commute these nine death sentences; if it had not, then it must explain why the decision was not reiterated and the files sent back to the President to abide by the Council of Ministers’ advice. Silence won’t do for under no circumstances can the religious beliefs of the President over-ride either the law of the land or the advice of the Council of Ministers.

The issue here is not whether capital punishment is morally right or wrong, or if there was sufficient reason to commute these death sentences. The death penalty can be debated endlessly on other fora, but till such time capital punishment exists on the statute book, it makes little or no sense to seek to upturn the decision of the Supreme Court, unless the Government is convinced that there is compelling reason which, of course, must be justifiable and have nothing to do with either religious beliefs or moral compunctions, to commute the sentence. This has been the practice all this while; of the 77 mercy petitions in the past three decades, only 10 have been considered fit for commutation. The larger issue here is of the undesirability of a President dragging his or her religious beliefs into the affairs of a secular state. Unless contested, this will set a dangerous precedence. What if India faces external aggression and the President were to refuse to authorise the declaration of war, which he or she must by virtue of being the Supreme Commander, because of his or her religious beliefs? Or, if a President, guided by his or her religious beliefs, were to place faith above nation? Or, for that matter, refuse to sign an Act of Parliament into law because it contradicts the religious injunctions to which a President may subscribe?

Since doubts have been raised, the President must disclose the reasons behind her decision to commute the death sentences. If she doesn’t, the Government must make them public and tell the people whether it endorses them; if it doesn’t, then the files should be returned to Rashtrapati Bhavan immediately. Meanwhile, the pending mercy petitions should remain untouched.

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[This is an expanded version of the editorial comment I wrote for The Pioneer. My stuff published in The Pioneer can be read here.]