The President has sent nine petitions including that of Mohammed Afzal Guru back to the home ministry for further consideration. Afzal Guru is listed at number eight in precedence.
Article 72 of the Constitution empowers the President to pardon, grant reprieve or suspend, remit, commute sentence of a person convicted for any offence.
The President is guided and advised by the home minister and the council of ministers in his decision. There is no timeframe in which the President has to make the decision which is subject to judicial review.
Former President Pratibha Patil granted clemency to 35 convicts and rejected three pleas.
Fourteen former Judges had recently appealed to President Mukherjee to commute Saibanna's death sentence to life imprisonment, in view of Supreme Court's admission in 2009 in another case that the Court's confirmation of his death sentence in 2005 was per incuriam (judgment delivered out of error or ignorance).
In Santosh Kumar Bariyar v. State of Maharashtra (2009), the Supreme Court held that the Court's confirmation of death sentence in Saibanna's case fell foul of two binding judgments of the Supreme Court, namely, Mithu Singh v. State of Punjab (1983) and Bachan Singh v. State of Punjab (1980).
In Mithu Singh, the Supreme Court's five-Judge Constitution Bench struck down Section 303 of Indian Penal Code, prescribing mandatory death sentence (prescribed under Section 303 of Indian Penal Code) for convicts found guilty of committing murder while serving life sentence.
In Bachan Singh, another Constitution Bench had held that death sentence is constitutional if it is prescribed as an alternative for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life.
In Saibanna, the Supreme Court was doubtful whether a person already undergoing imprisonment for life could be visited with another term of imprisonment for life to run consecutively with the previous one. Instead of resolving this doubt, the Court confirmed his death sentence.
In Bariyar, the Court admitted that the Bench in Saibanna effectively made death punishment mandatory for the category of offenders serving life sentence.
The Karnataka High Court which first heard Saibanna's appeal against the death sentence gave a split verdict.
His appeal was then referred to the third Judge, who confirmed his death sentence.
The Supreme Court, while confirming Saibanna's death sentence, had relied on Machhi Singh v. State of Punjab, which was on November 20 last year considered per incuriam by a two-Judge Bench of the Supreme Court in Sangeet v. State of Haryana.
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