"The powers under Article 72 of the Constitution are special powers overriding all other laws, rules and regulation in force. No time frame can be set up for the president in this regard," the affidavit said.
"The powers of the president are discretionary which cannot be taken away by any statutory provision and cannot be altered, modified or interfered with in any manner whatsoever by any statutory provision or authority," it said adding "the court, therefore, cannot prescribe a time limit for disposal of the mercy petition".
The Centre filed its response on the apex court's order which had on September 28 asked the Centre to explain the delay of over eight years in deciding the mercy plea of terrorist Devender Pal Singh Bhullar who was awarded death penalty for triggering a bomb blast here in September 1993 killing nine people.
Justifying the time taken by the government in deciding Bhullar's mercy plea, the Centre said, "Processing a mercy petition is purely a constitutional process which takes time." It also submitted that delay in disposal of a mercy plea cannot be a ground to give any relief to the convict.
"A delay in disposal of the mercy petition is not a mitigating circumstance for commutation of death sentence and also does not reduce the gravity of the crime," the affidavit said.
"The pendency of the mercy petition cannot be said to be an act of cruelty or an act which adds to the suffering of the prisoner. In fact, it is the pendency of the mercy petition which has given a lease of life to the prisoner," the affidavit said.
Bhullar was sentenced to death by a TADA court on August 25, 2001, for his role in the September 10, 1993, bomb blast in Delhi targeting the cavalcade of then Youth Congress President Maninderjit Singh Bitta who escaped with serious injuries though nine security personnel were killed.
The Supreme Court had on March 26, 2002, dismissed Bhullar's appeal against the death sentence. He had then filed a review petition which was also dismissed on December 17, 2002. Bhullar then moved a curative petition which too was dismissed by the apex court on March 12, 2003. Bhullar, meanwhile, had filed a mercy petition before the President on January 14, 2003.
The president, after a lapse of over eight years, dismissed his mercy plea on May 25 this year.
The Centre pleaded it was "expediting" the process of fast disposal of 32 mercy pending. It said 15 such pleas have so far been decided by it after the United Progressive Allinace came to power while no mercy petition was decided by the National Democratic Alliance government.
It said the home ministry is recalling the mercy pleas pending before the president and sending its recommendation on such cases on the basis of date of trial courts' verdicts.
"The petitioner has a right to file a petition before the competent court on the delay of mercy petition but the court will only examine the nature of delay caused and circumstances ensured after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusion reached by the court," the Centre said while pleading that no relief be given to Bhuller.
Bhullar is currently undergoing treatment at the Institute of Human Behaviour and Allied Sciences in Shahdara for hypertension, psychiatric illness and suicidal tendencies.
In a petition to the apex court, his wife Navneet Kaur has contended that the May 25 order of the president ought to be quashed as "the same suffers from lack of application of mind, non-consideration of relevant circumstances and presumably having been made on extraneous grounds."
She also pleaded for altering his death penalty to life term saying it would be "inhuman and violative of Article 21 of the Constitution" to carry out his execution Kaur claimed Bhullar has turned "mentally retarded" due to delay of more than 5,700 days in deciding his mercy plea. She claimed the last time she had met him at IHBAS, she found him to be quiet, withdrawn and unwilling to talk.
"His condition has continued to deteriorate since his conviction in 2003. Earlier, she thought he was only suffering from hypertension and arthritis but now she realises the psychotic symptoms with suicidal tendencies are a by-product of suffering a slow death on account of being a condemned prisoner since 2001.
"Execution of a mentally retarded prisoner is considered to be cruel and inhuman and should be deemed to be prohibited under Article 21 of Constitution of India. In the US, there is a national consensus that mentally retarded persons are excluded from execution because it can neither serve as a retribution nor deterrence," said the petition.
Kaur cited the apex court's ruling in the Triveniben Vs State of Gujarat (1989) case that undue delay in execution of death sentence entitles the condemned prisoner under Article 32 of the Constitution to approach the court that his death sentence be commuted to life imprisonment.
