President may take up Kasab's mercy plea out of turn

Lashkar-e-Tayiba terrorist Ajmal Kasab, who was awarded the death punishment for his role in the November 26, 2008 Mumbai carnage, is sure to utilise all the appeal provisions that he has before him.

The ultimate appeal lies with the President of India. However, at present, the President has 50 mercy petitions pending in her office.

The normal practice is to take up these cases in the order in which it reached the President's office. The question now is whether Kasab will wait have to wait till the other mercy petitions are disposed off by the President.

Legal experts told rediff.com that there is no hard and fast rule that mercy petitions should be disposed off in order. The President can take a call and take up the matter out of turn. The President must be satisfied that there is an extraordinary circumstance concerning this case and hence it must be taken out of turn.

The President can also take into consideration the public sentiment involved in the case. Moreover, there is also no first come first serve policy that can be applied in so far as a mercy petition is concerned.

Lawyers say that there is an imminent danger in keeping a mercy petition in cold storage for too long.

Justice Santosh Hegde, former Supreme Court judge, points out that the Supreme Court on several occasions had stated that a mercy petition involves a death sentence and hence cannot be kept in the cold storage for too long.

The highest court of the land had observed that a long period on a death row is an everyday suffering and hence it becomes a ground to commute a death sentence to life. In case a prisoner on a death row feels that his mercy petition is being delayed, he can always approach the Supreme Court and quote this judgment.

What the President will consider
Although the President has the ultimate power to decide on the petition, an advise is always sought from the home ministry. There are certain points that the President would want cleared out before the death sentence is upheld.

• Personality of the convict
• Whether the convict is suffering from a mental disorder when committing the offence?
• Had the court expressed any doubt regarding the evidence when handing out the sentence?
• Has any fresh evidence cropped up to substantiate the claim of the appellant?
• Was evidence considered before the sentence was handed out?
• Was the death sentence given after a long delay in the trial and investigation?

Role of the people
It is not as though the public lose a right to say anything if they find that there is inordinate delay in the President deciding on a mercy petition.

They can approach the Supreme Court and file Public Interest Litigation preferably in a large group seeking a direction to the President to expedite the matter.

The Supreme Court can advise or direct the President to take up the matter and dispose it off.