At the heart of the controversy over Mohammad Afzal’s mercy petition is the rather ambiguous position of the president of the Indian republic. The founding fathers of the Constitution felt that following the Westminster model there would be a division in India between the head of state and the head of government. But because India was a republic, the head of state could not possibly be a king or a queen. To get around the problem, the office of an elected president was introduced, thus making a mishmash between the US constitution and the Westminster model. But unlike the US president, the Indian head of state enjoys no substantive powers. Yet, the Indian president, by virtue of being elected, is not like royalty. Does he, for example, enjoy the rights of bestowing a royal pardon on a convicted person? The Supreme Court has said that the president’s powers in this regard are seriously circumscribed by the rule of law. The apex court decreed that reasons would have to be cited for the granting of clemency. Pardons could not be an instrument of political expediency. In other words, if a person was found guilty and condemned to death according to the laws of the land, the verdict cannot be reversed by even the president because the death penalty would have an adverse political fallout.

This judgment of the Supreme Court and its implications are important. One of the implications is that the president of the republic is not above the rule of law. He is as much subject to the laws of the land as the citizens who elect him. The president is thus not above the Constitution that created the office in the first place. The Supreme Court has thus reiterated the crucial importance of the Constitution. But this reiteration has not really solved all the related problems. One critical question that remains unresolved is, who safeguards the Constitution? Or who decides what is justified or not justified within the rule of law? The obvious answer would be the judiciary. But to accept this answer without qualifications is to accord to the judiciary a greater importance than the other two pillars of the state. Such a move would destroy the checks and balances that are embedded in the Constitution for the proper functioning of democracy. There is a scope at this juncture to review not only capital punishment and clemency but some other more important aspects of the Constitution.