On the first day of this year, President Pranab Mukherjee accepted the mercy petitions of four death-row convicts found guilty of participating in the Bara massacre, in which 34 dominant-caste men were murdered by Maoist militants in 1992 following several massacres of Dalits in Bihar. In doing so, Mukherjee commuted their death sentences to life imprisonment. Reports in the Indian Express and on the website The Wire cited unnamed official sources as saying that Mukherjee did so in defiance of the recommendation of the council of ministers, which, with mercy petitions, acts through the ministry of home affairs. These sources also said that, in September, Mukherjee had similarly rejected the ministry’s advice when he commuted the death sentence of another convict, Jitendra Nainsingh Gehlot. (Disclosure: The Centre on the Death Penalty at the National Law University, Delhi, where I currently work, facilitates legal representation for death-row convicts, including Gehlot.)
These commutations were significant on two counts. First, they came from a president who has garnered a reputation for being unsympathetic and sparing with his powers in this respect. The government has carried out three executions since Mukherjee took up the presidency in 2012, making his the tenure with the highest number of executions since that of Shankar Dayal Sharma, who left office in 1997. Mukherjee has also disposed of every mercy petition that has come to him. Unless the home ministry forwards more petitions to him in the little time left before his tenure expires, in late July, he will not leave a single mercy petition pending for his successor to deal with, unlike at least his three nearest predecessors. Second, if the reports that Mukherjee defied the home ministry are accurate, he acted in violation of Article 74 of the constitution, which obliges the president to follow the advice of the council of ministers in the use of her powers. This is something unprecedented—or at least never before publicly documented—in the history of capital punishment in India.
Both these points call for careful analysis. Regarding the first, assessing Mukherjee’s legacy requires a comparison of his record against those of previous presidents, and an understanding of the varied standards India’s presidents have applied to dealing with mercy petitions. Regarding the second, beyond the question of what made Mukherjee act as he did, it is vital to consider, in the context of relevant legal provisions and case law, the constitutional implications of a maverick president rejecting the advice of the council of ministers.