Although it is a blasphemous thought, it has cropped up in many a legal mind during the last few weeks: if bets were placed on the Supreme Court’s decisions, only a very shrewd bookie would emerge victorious. So unpredictable have the thought-processes of the nation’s highest court become.

A three-judge bench consisting of Chief Justice Y. V. Chandrachud, and Justices O. Chinnappa Reddy and A.P. Sen proved this point on January 20, when, in a terse, 620-word judgment, the Court vacated the stay of executions of all death penalties that it had granted on November 7 last year (India Today. November 30, 1981), and ruled that the petition of Kuljit Singh, alias Ranga, was being rejected because “we see no justification for saying that in refusing to commute the death sentence imposed upon the petitioner into a lesser sentence. The President has in any manner transgressed his discretionary power under Article 72.”

It was one of the most mysterious flip-flops in the history of Indian jurisprudence. When. 24 hours before Ranga and his mentor Billa were due to be hanged on November 8, a hastily-constituted bench consisting of Chandrachud, Sen and Baharul Islam admitted a writ petition filed by Ranga’s lawyer Rajendra Kumar Garg, ripples of amazement spread through the legal community-and angered many a citizen thirsting for the two killers’ blood. Garg had argued then that the President’s power of pardon ought to be examined to see whether it was arbitrary or justiciable.

Close Examination: In simple terms, the stay order implied that the Supreme Court was taking it upon itself to examine what had until then been the ultimate word on a convicted killer’s clemency plea. “Since the question raised by Shri Garg is of far-reaching importance. . . it is necessary that the question must be examined with care.” said the Court.

Many senior advocates privately held then that they felt the Supreme Court was going too far. It could have. they argued, told Garg that his question was interesting, but not worthy of being taken up in this particular case. While delivering their judgment on Ranga’s original mercy petition on April 21. 1981, Justices Chandrachud, Sen and Islam had concluded by hoping “that the President will dispose of the mercy petition stated to have been filed by (Ranga) as expeditiously as he finds his convenience.”

It was in this context that the Court’s subsequent order of November 7 sparked off intense speculation. It was anticipated that the January hearing would bring up questions of immense constitutional importance: whether the President’s mercy power was justiciable. whether the Executive’s power was justiciable, whether the Executive’s powers could be disputed, and whether the President. even though he is under advice of the Council of Ministers. ought to give what is known as a “speaking order” — that is a reasoned order listing arguments in favour of a particular decision.

Disapproval: Something, however, happened in the two-and-a-half months since then to change the Supreme Court’s mind. Perhaps the invisible upsurge of public disapproval was responsible. Or perhaps the Supreme Court felt that examining the President’s pardon powers implied a head-on collision with the Executive, at a time when relations between the Government and the judiciary are stretched to snapping point. Whatever the reason. the Supreme Court executed a neat U-turn on January 20. “If one reads the orders of the Chief Justice of November 7 and January 20,” says Garg. “One cannot miss the complete collapse of the constitutional conscience of the highest court.”

Garg seemed chagrined when India Today met him immediately after the vacation of the stay order. He had hoped to show that executive clemency is “no longer a Crown prerogative, but a constitutional power coupled with a duty.” A staunch opponent of capital punishment, Garg feels that “When a man is hanged by the brute power of the State. Something human dies within the heart of every man in that nation.”

The order, anti-climactic as it was, nevertheless evoked sighs of relief. “Thank God the Court has made it clear that it would not like to put the power of pardon within the limits of a rigorous judicial discipline by laying down rigid standards for its exercise,” said a senior Supreme Court lawyer.

What went almost unnoticed in the hubbub raised by the order was an affidavit filed on behalf of the Union Government by S.C. Balbani, under-secretary, Home Ministry. In it, the Government said that the President was bound by the advice of the Council of Ministers under Article 72. At most, he could ask the Council to re- consider a decision. “but even in such a case the President has to act in accordance with the advice tendered after such reconsider-action,” said the affidavit. Legal circles were quick to point out that the Government had obviously utilised the opportunity to reassert its supremacy over the President.

Curious Muddle: But, as far as Garg’s petition was concerned, the very fact that a three-judge bench was hearing it seemed ominous for the many observers who crowded the courtroom that day. Under Article 145(3) of the Constitution, ‘the Supreme Court is required to ensure that “The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution. . . shall be five.”

In many ways, therefore, the January 20 decision reflected a curious muddle in the highest court of the land. But Garg is hopeful that the justiciability of Presidential power of pardon has not been ruled out irrevocably. Recently, stay orders were granted and the executions stopped of two convicted Tamil Nadu murderers, Avanashi and Periakaruppan, barely 10 hours before they were scheduled to be hanged. Garg says that the Supreme Court might possibly consider that an “appropriate” enough occasion to re-examine the issue. Meanwhile, the inexorable countdown towards their nemesis began for the killers of Geeta and Sanjay Chopra from the moment the Chief Justice read his order.

—Chaitanya Kalbag

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