The Supreme Court's dismissal of the curative petition filed by Mohammed Afzal Guru, sentenced to death in the Parliament attack case, does not bind the hands of President A P J Abdul Kalam to automatically reject his mercy petition as the court has itself held in another case that the President's mercy powers under Article 72 of the Constitution remain unhindered.
In a petition submitted to Rashtrapati Bhavan last Saturday, Afzal's counsels N D Pancholi and Mukul Dube have sought to bring to Kalam's notice 'a little known judgment of the Supreme Court of India concerning the powers of the President of the republic in respect of mercy petitions.'
The petition, which the two got endorsed by 347 'fellow citizens' by putting it on the Internet, points out the Supreme Court's five-judge ruling in AIR 1989 SC 653 in the case of Kehar Singh, hanged for Indira Gandhi's assassination that says the President can determine whether or not a convict is guilty, notwithstanding the findings of the courts.
Pancholi and Dube have pointed out that the then President had rejected Kehar Singh's mercy petition on the ground that the President cannot go into the merits of the case finally decided by the highest court of the land.
Kehar Singh challenged the President's decision and the 5-judge bench held that the opinion formed by the then President was wrong 'because a decision of the Supreme Court can also be wrong.'
The apex court had then held that 'it is open to the President in the exercise of power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on the accused.'
Stressing that 'fallibility of human judgment being undeniable even in the most trained minds (of judiciary),' the 1989 ruling points out that 'it has been considered appropriate that in the matter of life and personal liberty, the authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty.' It further stressed that 'the power so entrusted is a power belonging to the people and reposed in the highest dignity of the State.'
Pointing out that the Supreme Court had recently rejected Afzal's curative petition without explanation, the petitioners pointed out to the President that 'now his only hope of living is the mercy petition which is with you.'
They pointed out that a court is limited to examining the material placed before it while the President can take into account 'a wide range of considerations, including political, social and moral ones.'
Stating that the Supreme Court has referred only to the President's constitutional powers under Article 72, the petitioners stressed, 'It is the President's moral responsibility to ensure that injustice is not done to a citizen by depriving him of life.'
They added that Afzal was convicted on the basis of circumstantial evidence and that from the start he had no effective legal defence and he was also the victim of a shrill media campaign.