India's new president asked: life or death?

As president, Pranab Mukherjee is required to decide on clemency petitions that are forwarded by the home ministry in the final stage of India's death penalty appeals process

NEW DELHI // Among the ceremonial invitations piled on the desk of India's new president, Pranab Mukherjee, sits a small file that could provide the veteran politician with one of his biggest challenges.

The folder contains 11 mercy petitions from condemned convicts for whom Mr Mukherjee now represents the last legal obstacle between their death row prison cells and the hangman.

As president, Mr Mukherjee is required to decide on clemency petitions that are forwarded by the home ministry in the final stage of India's death penalty appeals process.

It is largely an inherited challenge.

India has more than 400 people on death row and the courts hand down fresh death sentences every year.

But Mr Mukherjee's three presidential predecessors, while signing off on a number of recommendations for clemency, often stonewalled when it came to appeals the ministry recommended should be rejected.

As a result, only one execution has taken place in 15 years - that of a former security guard hanged in 2004 for the rape and murder of a 14-year-old girl.

The lack of executions has led some to question why India retains a death penalty it so rarely enforces.

Colin Gonsalves, an advocate in the supreme court and a founder of the Human Rights Law Network, points to surveys showing public opinion strongly in favour of capital punishment.

"The idea of revenge is widely accepted here," Mr Gonsalves said.

The ruling Congress Party is seen as having abolitionist leanings, but Mr Gonsalves said it was unlikely the party would push for the death penalty to be eliminated, given its popular support.

"If they try to abolish it, then the opposition will appropriate the issue and attack them," Mr Gonsalves said.

Some legal experts believe the hiatus on executions partly reflects reluctance to hang people affiliated with an ethnic, religious or political group.

The scheduled hanging of three Tamils for their role in the 1991 assassination of the prime minister, Rajiv Gandhi, triggered large protests in the southern state of Tamil Nadu last year and the executions were eventually stayed.

There were similar protests this year by Sikhs in Punjab over a Sikh radical scheduled to hang for his role in the assassination of a state chief minister in 1995, and his execution was also stayed at the last minute.

"The government has to wait and check which groups will be upset before you execute someone," said Sanjay Hegde, another supreme court advocate.

Other observers say the main cause of the lack of executions has been the action - or inaction - of Mr Mukherjee's three predecessors: KR Narayanan, APJ Abdul Kalam and Pratibha Patil.

The president's powers in deciding clemency petitions are limited.

The recommendation of the home ministry can be returned for reconsideration, but only once, after which the president is constitutionally obliged to follow the ministry's lead.

However, there is no set time limit for providing the presidential signature, leaving room for endless delays.

After taking office in 1997, Mr Narayanan opted to sit on eight clemency petitions until his term expired.

Mr Kalam followed suit. As well as the eight he inherited, he received 17 more, but acted on only two. One was approved and the other rejected - leading to India's last execution in 2004.

The growing list of 23 pending appeals was then passed on to Mrs Patil who received another nine petitions during her tenure.

In an attempt to clear the backlog, Mrs Patil acted on the home ministry's recommendations to grant clemency in 19 cases and refuse it in two, including the case of Rajiv Gandhi's murderers.

She left 11 for Mr Mukherjee, among them several toxic cases including Mohammed Afzal Guru, a Kashmiri Muslim sentenced to death for his role in the 2001 attack on India's parliament.

Granting Afzal Guru clemency would risk a backlash, especially from Hindu right-wingers, while rejecting his appeal risks igniting Muslim separatist sentiment in volatile Kashmir.

Mr Mukherjee may also come under pressure to reject any petition from Mohammed Kasab, the sole surviving gunman from the 2008 Mumbai attacks, who was sentenced to death two years ago.

The political commentator R Jagannathan said that Mr Mukherjee was unlikely to hand down decisions that would upset public opinion ahead of elections in 2014.

"Mukherjee is an acutely political person and he understands the impact of these decisions, so he is not going to push ahead with anything controversial," he said.

"The Congress would like to see the death penalty go, but they cannot afford a fight."