Monday, June 28, 2010

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.

What do you think? Register your opinion on this issue by participating in the blog poll in the left column.

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

29 comments:

Mehul J. Rajput said...

if true then it is truly bad news... so we may expect even guru getting a lifer rather than a capital punishment...

Hema Fern said...

The reasons to be established first, then comes the judgement, whether it is right or wrong.

Aditya said...

This is scary !...she's letting the whole country down..I thought atleast she's going to be a Rubber stamp ...but she's not even that !!

Akhand Bhaarat said...

राष्ट्रपति महोदया: आपको ज्ञात होना चाहिए की "राष्ट्र रक्षा" सर्वोपरि है|
आपके राष्ट्र के प्रति उत्तरदायित्व व नीजी पंथ,श्रद्धा, विश्वास इत्यादी में अंतर्विरोध/विरोधाभास हो तो अपना त्यागपत्र देंने की कृपा करें|
आपको मेरी & मेरे राष्ट्र की रक्षा का अधिकार नहीं है|

Anonymous said...

she should have taken the call before she accepted the post whether she is ready to take unbiased decisions uninfluenced by he religious beliefs

harini calamur said...

what religious beliefs, kanchan ?

she is a Hindu - and she is the President - let her do her duty. that is the core of religious duty. but not carrying out her duty by using the name of religion as a crutch - the Hon. President is actually taking the easy way out :(

I personally don't believe in indiscriminate use of hte death penalty. but, i don't think that it should not be used for wooly headed reasons either :)

psudo said...

Shamelessness has no religion! :-)

संजय बेंगाणी said...

आपका धर्म राष्ट्र के हित को देखना है. जब पद से उतर जाएं तब अपनी मर्जी के धर्म का पालन करें. निर्णयों में धर्म को बीच में न लाएं.

भारत वैसे भी धर्म निरपेक्ष देश है. :)

Nandinikakoti said...

Is her longing for religion letting breach her duties? Is religion stopping her from protecting her oath on being the commander of the state? Does humanity and justice go hand in hand and if so is humanity breach of religion?

Rishi Kalia said...

If true, this is indeed a dangerous proposition. To me it seems an attempt by the Congress( as the President herself is a Congress leader) to ostensibly pardon Afzal & later on Kasab so that it could pamper its muslim votebank. A religious beliefs cannot supersede the law of the land. What if tomorrow a Brahmin convicted of murder files a mercy petition, would that person be pardoned purely because of the fact that he is a Brahmin & killing a brahmin is considered as brahma hatya in Hindu ism!!!

K Stephen Daniel said...

If religion stops the President from doing her duty then she should resign. She can't have both. I think UPA is thinking how to convince this to the President so that this issue is solved without the President resigning. Has the opposition gone to sleep?

Rishi Kalia said...

If true, this is indeed a dangerous proposition. To me it seems an attempt by the Congress( as the President herself is a Congress leader) to ostensibly pardon Afzal & later on Kasab so that it could pamper its muslim votebank. A religious beliefs cannot supersede the law of the land. What if tomorrow a Brahmin convicted of murder files a mercy petition, would that person be pardoned purely because of the fact that he is a Brahmin & killing a brahmin is considered as brahma hatya in Hindu ism!!!

Kpp1991 said...

If her religious beliefs were to influence vitally crucial decisions a President's Chair is required to constitutionally take, it becomes not only an abhorrent aberration but also an ignominy to our Constitution. As KanchanDa said, either abet the Council of Minister's recommendation on Capital Punishment or RESIGN!

Anonymous said...

राष्ट्रपति महोदया को ये जानकारी होनी चाहिये कि फाँसी की सजा संविधान के प्रावधानों के तहत ही दिया जाता है।
जिनके कंधों पर संविधान की रक्षा का दायित्व है वही यदि ऐसी बातें कहेंगे तो भगवान ही मालिक है इस देश का।

Maniiiiiii said...

This is outrageous...how can our head of state make these comments??

Shashank Singh Deo said...

The country is fast moving towards anarchy, not only at the roots but also at the top. President's adds another feather to the cap on India displaying the country as weak and though we may flatter ourselves with "war on terror", we are actually portraying "soft on terror". On one hand, when we have a stable govt ( even though its the congress), but at least they have the option of taking strong decisions on their own. Since they are not, when we have a bigger coalition govt next time round, god only help this country with "soft" decision makers.... And kanchan, in one of the recent "we the people; show on maoists, in the clising marks you had mentioned about reading a book to give a perspective on maoists, can you please share the name of the book once again. Thanks.

Anonymous said...

ongress's version of Secularism is impossible to decipher. Now, the Champions of Secularism, the Half-Head Congressis, would you be gracious enough to explain why religious beliefs is playing the dominant part in Justice?? U dirty sycophants go and lick u r Paedophile Gay Pope's arse....And yes, plz stop worshiping Maino...Worshiping her might get u Posts, but not any knowledge..

VOXINDICA said...

Mercy petitions are to be decided based on certain specified criteria and not based on the President's personal whims howsoever they are labelled ', religious beliefs, '. India does not have an executive president who can take independent decisions. The only time a president came to take an independent decision was when President Radhakrishnan threatened Nehru that would be forced to dismiss his government if he did not dismiss Krishna Menon as Defence Minister after the Chinese invaded in India in 1962. At that time although the two arms of the executive were almost on a collision course, the whole country backed the president. Jawaharlal, whatever his other faults was too much of a democrat not to heed public opinion and he deferred to the President’s dictum. In the present case the country will not pardon the president granting a pardon to a terrorist who declared a war on the nation. If the government is leading up to it under the cloak of the president’s 'religious beliefs' it will be unfortunate. A government which tries to play politics with national security loses its moral authority to govern.

In Maru Ram v Union of India, the Supreme Court held that, “…pardon, using this expression in the amplest connotation, ordains fair exercise... Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise….For example, if the Chief Minister of a State releases every one in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive.”, In the Kehar Singh v Union of India (Indira Gandhi assassination case) the court held that a presidential judgement could only be questioned based on certain limitations such as “considerations that are arbitrary or ‘wholly irrelevant, irrational, discriminatory or mala fide’”. If the present President uses her discretionary powers to pardon Afzal Guru she will be open to criticism that she did so based on considerations ‘wholly irrelevant, irrational, discriminatory or mala fide’!

Anonymous said...

Its nothing but a "political plot" to appease minorities in the long run for the congressi vote bank !! afzal guru will not be hanged and the excuse that would be given will be this action of president ... Something like "if president can pardon 10-15 criminals from getting hanged, so why not afzal guru too" ... bloody sick indian politics !! And yeah kasab too in the future after all he too is from vote bank side for the congress

Beena said...

This action of hers is to clear the pitch for Afzal Guru and Kasab's pardon eventually. 'Sickular' Government is chugging ahead full steam.

mpanj said...

@Aditya

She's indeed a rubber stamp. She wants to get Afzal off the hook. This is just a natak to justify her decision.

Also, and more importantly (and this is where her rubber stamp comes in) she will allow Sonia Gandhi to claim "we kept our promise to minorities" without attracting a Hindu backlash.

But People r not idiots. Lets wait and watch.

ashwin said...

she has been given this script by the supreme power/fountainhead of corruption sonia gandi.this way many birds are killed(surely not her religious belief),afzal, kasab sing praises,and prepare for next action hindu religion gets thrown in confusion/defamed and vote bank is in high spirits.no blame comes on the supremo because minion exercises the unchallengable peroragative.

Anonymous said...

to mpanj: 'But People r not idiots. Lets wait and watch.'

I have serious doubts on that.

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