The Centre today told the Supreme Court that courts should not inquire into a decision of the President to grant pardon to a convicted person, saying the power of the head of the executive is beyond the pale of question. "The power to grant clemency is an attribute of sovereignty. The court ought not to inquire into the merits of the exercise of the prerogative," the government said in its affidavit filed in the apex court.
The response was filed in compliance with the apex court's order which had on November 18 issued a notice to it on a PIL challenging former President Pratibha Patil's decision to commute death sentence of five condemned prisoners in child rape cases. "The manner of consideration of a mercy petition lies within the discretion and prerogative of the President of India. The court in the exercise of its judicial powers must give due deference to the decision of another Constitutional authority. It is submitted that the exercise of power by the President is beyond the pale of question," it said.
It said in case of a decision being rendered in favour of or against the convict, the courts in exercise of the powers of judicial review ought not to nullify the decision of another Constitutional authority. "If the courts are to nullify the effect of President's order after such a decision is taken by him, it would amount to sitting in appeal over the decision of the President and substituting it with a judicial decision, which could never be the intention of Constitutional makers," it said.
The apex court had in November last year agreed to hear the PIL, filed by journalist Pinki Virani, questioning the then President's decision to commute the death penalty in the cases of extreme brutality.
She had contended that out of 35 cases in which death sentence was commuted by Patil, five cases are pertaining to brutal child rape and submitted the relief should not have been granted by the President in those cases.