There can be little doubt that the power of judicial review has been extended so far in the Indian context, that it almost amounts to kritarchy, or rule by judges.

Over the last few decades, apart from the claim that there is a basic structure which even parliament cannot change, the courts have whittled down the powers of constitutional authorities such as the legislature, its Speaker, the Governor, and even the Vice-President and the President.

The Bharatiya Nagarik Suraksha Sanhita Bill, 2023, which proposes to replace the British era Criminal Procedure Code, restricts the judiciary’s role in clemency petitions, including mercy petitions for death row convicts.

Section 473 says, inter alia, that “no appeal shall lie in any court against the order of the President made under article 72…and it shall be final, and any questions as to the arriving of the decision by the President shall not be inquired into in any court.”

Section 473 is just a small pushback against judicial interventionism and over-reach, and needs to be applauded.

Another one is the bill to create a three-member panel comprising the prime minister, a cabinet minister and the leader of the opposition to decide appointments to the Election Commission.

Under a Supreme Court judgment earlier this year, the older method of leaving the selection of Election Commissioners to the executive was overturned, and a new three-member panel comprising the chief justice, the prime minister and the leader of the opposition created in its stead.

The bill seeks to correct this insertion of the chief justice into the selection process by creating a new panel that excludes him. It is now pending in parliament and could be passed in the winter session, if enough non-NDA parties support it in the Rajya Sabha.

Once again, this pushback against judicial encroachment on executive and legislative domains is sorely needed. An unelected judiciary cannot be the final arbiter in every matter, never mind what the constitution actually says on the matter.

For example, article 72, which gives the President the power to pardon or suspend or commute court sentences, has this to say:

“72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a court martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death

(2) Nothing in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a state under any law for the time being in force.”

Here is the real issue. This power is given to the President and Governors, who act on the advice of the relevant cabinet, after the judicial process is completed, and all appeals have been heard from the lowest to the highest courts.

It is only then that the ball falls in the executive’s court, ie, the President's. What is the logic of inserting the judiciary again to examine what it has already examined?

But the courts, probably out of excessive deference to certain community sentiments, have often heard mercy petitions on the eve of an execution (Yakub Memon in 2015, where the final mercy petition was heard in the wee hours of the morning).

In other cases, death sentences were commuted merely because the mercy petitions had been pending with the government for too long.

The question is whether the courts are right to treat delays in executing a death sentence as some kind of torment inflicted on the death row inmate, instead of an actual benefit.

A person who should have been hanged long ago gets to live longer, and this can hardly be considered as an unfair assault on his (or her) rights. In fact, if any death row convict actually thought so, he or she should have demanded early execution, not commutation.

But they benefit from executive delays and then seek court concurrence to reduce their sentences after committing heinous crimes. Death sentences are awarded only in the rarest of rare cases.

The courts have no business deciding cases that have already been decided by them using some pretext or the other. The Bharatiya Nagarik Suraksha Sanhita Bill is quite right to curtail this judicial need, to keep examining the same thing over and over again, when there are crores of other cases still pending in hundreds of courts.

judicial encroachment

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