Supreme Court to hear plea of Balwant Singh Rajoana on November 25 after Solicitor General Tushar Mehta’s request

However, a bench of Justice Gavai and Viswanathan agreed not to proceed with the order Solicitor General Tushar Mehta, who was not present when the morning’s hearing took place, made a request later in the day. “We are not passing that order,” said Justice Gavai fixing the matter for hearing on November 25.

Mehta, who apologised to the bench for not being present in the morning, submitted that the file is with the Union Ministry of Home Affairs (MHA) and not the President. Stating that he will take instructions and appraise the court, Mehta said there are “sensitivities” involved in the matter and urged the court not to sign and upload the order Monday.

During the hearing earlier in the day, the top court took exception to the Centre’s counsel not being present, saying that “the bench has been specifically assembled only for this matter”. “On the last date, the matter was adjourned to enable the Union of India to take instruction from the President as to within how much period the mercy petition of the petitioner would be decided.”

“We, therefore direct, Secretary, President of India, to place the matter before the Hon’ble President within a request to consider the same within two weeks from today,” the bench said in the order. The court also clarified that if no decision is taken by the next date, it will consider the prayers made by the petitioner for interim release for a few months.

The counsel for the Punjab Government said the Centre had to respond in the matter as the mercy petition was to be decided by the President. “We have no role to play. We are the State of Punjab. The mercy petition is with the President,” said the state’s counsel.

Justice Gavai sought to know why the state said it had no role. To which, the counsel said though the offence was committed in Punjab, the trial and conviction took place in Chandigarh and, hence, the latter is also a party. He added that a notice was issued to Punjab only because Rajoana is in jail in the state.

Appearing for Rajoana, Senior Advocate Mukul Rohatgi said the Centre had not filed any response. He also said no one was present on behalf of the Centre before the court Monday. Justice Gavai pointed out that it was a Special Bench constituted to hear the matter and the Centre should have appeared. “The Solicitor had to appear in this matter…”.

Rohatgi urged the court to proceed with the matter if the state has no objection. He submitted that the mercy petition was filed in 2012 by the Shiromani Gurdwara Parbandhak Committee for Rajoana. “We are in 2024. This man has not seen the light of the day outside jail.”

The senior counsel contended that “there is no difference” whether the mercy petition is filed by the convict or someone on his behalf. “Somebody can move it on my behalf or it could be suo moto.”

In September 2020, Rajoana moved the SC stating that his mercy petition pending for several years be taken up immediately for disposal and MHA’s 2019proposal be implemented. Hearing the plea, the Supreme Court asked the Centre to decide. The Centre then filed an affidavit stating that it “has decided to defer taking any decision on the mercy plea”. “As it has a serious potential of compromising the security of the nation or creating a law and order situation,” said the Centre.

On May 3, 2023, the Supreme Court rejected the plea and left it to the Centre to decide on the mercy plea of Rajoana, a former Punjab Police constable, at an appropriate time. He then filed a fresh plea.

Referring to the Centre’s stand in the previous plea, Rohatagi argued Monday, “The Government says this is not the time to decide. When will you decide? When his life is over? This is not a case of national security… He’s only one left on death row”.

Convicted for the August 31, 1995, assassination of Singh and 12 others, pro-Khalistan militant Rajoana, who hails from the Rajoana Kalan village of Ludhiana, was sentenced to death in 2007 by a special court of the Central Bureau of Investigation (CBI). The Shiromani Gurdwara Parbandhak Committee filed a mercy petition on his behalf in March 2012. In September 2019, MHA wrote to Punjab proposing commutation of his death sentence into life imprisonment to commemorate the 550th birth anniversary of Guru Nanak Dev, but the proposal was never implemented.