Mercy Power of President

Recently, the President of India has rejected the mercy petition of Mohammed Arif, a Pakistani national sentenced to death for the 2000 Red Fort attack that killed three people.

• The President’s decision on May 27 came after Arif failed to obtain relief from the Delhi High Court and Supreme Court in his appeals against a trial court order of October 2005.

About Mercy Petition

• About: A mercy petition is a formal request made by a person sentenced to death or imprisonment, seeking clemency from the President or Governor.
• Global Practice: The concept of mercy petitions is observed in many countries, including the United States, the United Kingdom, Canada, and India.
• Grounds for Mercy Petition: Mercy or clemency is not a right that the prisoner can claim. It is granted based on considerations such as the prisoner’s health, physical or mental condition, and their role as the sole breadwinner for their family.

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Constitutional Provisions of Mercy Power of President

• Provisions: In India, a mercy petition to the President is the final constitutional resort for a convict sentenced by a court of law. 
  • Under Article 72 of the Indian Constitution, a convict can present a mercy petition to the President of India. 
  • Similarly, under Article 161, the power to grant pardons is conferred upon the Governors of States.
• Article 72: The President has 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 offense: In cases where the punishment or sentence is by a Court Martial;
  • For offences against laws relating to matters under the executive power of the Union, in cases where the sentence is a death sentence.
• Article 161: The Governor of a State has 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 against any law relating to matters under the executive power of the State.
• Supreme Court Ruling: In 2021, the Supreme Court held that the Governor of a State can pardon prisoners, including those on death row, even before they have served a minimum of 14 years of their prison sentence.

Process of Mercy Petitions

• Eligibility and Timing: As notified by the Superintendent of Police, a convict facing a death sentence can file a mercy petition within seven days of the Supreme Court dismissing their appeal.
• Filing the Petition: The convict or their relative submits a written petition to the President or governor, citing grounds such as sole breadwinner ship, physical/mental health, perceived harshness of the law, or judicial errors.
• Review Process: The petition is forwarded to the Ministry of Home Affairs for assessment and recommendations, including consultation with the relevant State government.
• Presidential Discretion: Based on Home Ministry recommendations and the Council of Ministers’ advice, the President can accept or reject the mercy plea without a specified time limit.
• Governor’s Authority: While governors cannot pardon death sentences, they can commute, remit, or reprieve sentences under their state’s executive powers for offences against state laws.

Judicial Interventions on Mercy Petitions

• Ranga Billa Case: In the Ranga Billa Case, the court emphasised that the grant or rejection of a mercy petition is entirely discretionary, and reasons for these decisions are not mandatory.
• Kehar Singh vs Union of India: According to the Kehar Singh vs Union of India (1989) case, the court asserted that presidential pardon is an act of grace, not a right that can be claimed. The exercise of this power is purely administrative and not subject to judicial review.
• Dhananjoy Chatterjee (alias Dhana) vs State of West Bengal : (In the Dhananjoy Chatterjee (alias Dhana) vs State of West Bengal (1994) case, the Supreme Court clarified that the pardoning powers under Articles 72 and 161 of the Constitution can only be exercised by the Central and State Governments, respectively, and not autonomously by the President or Governor.
• Mohd. Afzal Guru vs State of Delhi (2014) case: In the Mohd. Afzal Guru vs State of Delhi (2014) case, the court mandated a minimum 14-day gap between the rejection of a mercy petition and the execution of a death penalty, ensuring adequate time for legal recourse.
• Maru Ram v. Union of India (1981): In Maru Ram v. Union of India (1981), the Supreme Court ruled that the power to grant pardons under Article 72 of the Constitution must be exercised based on the advice of the Council of Ministers.
• Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006): In the case of Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006), the Supreme Court ruled that the clemency powers of the President and Governor under Article 72 and Article 161 are subject to judicial review. 
  • The court identified specific grounds under which the petitioner can seek judicial review:
    • Orders passed without proper application of mind.
    • Orders passed in bad faith (malafide).
    • Orders are based on entirely irrelevant considerations.
    • Orders exhibiting arbitrariness.
• Procedural Guidelines: At a procedural level, the apex court has held that the President’s power must be exercised based on the aid and advice of the Council of Ministers and can be challenged on multiple grounds
  • including that relevant material was not considered, the power was exercised based on political considerations, or there was no application of mind. 
• Commutation due to delay: The top court has also commuted the death sentence in cases of inordinate delay in deciding mercy petitions, such as Shatrugan Chauhan v. State of U.P. (2014).
  • The court also commuted the sentence of one Gurmeet Singh after he spent 27 years in custody (and 21 years on death row). 
  • In April 2023, the Supreme Court upheld the Bombay High Court’s decision to commute the death sentence of a woman and her sister due to significant delays in deciding their mercy petitions.

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Legal Framework

• Indian Penal Code (IPC), 1860: Specifies capital offences, including murder (Section 302), treason (Section 121), terrorism-related crimes (Section 121A), and others punishable by death.
• Code of Criminal Procedure (CrPC), 1973: This law ensures procedural protections for defendants in death penalty cases, such as mandatory confirmation of the sentence by a higher court (Section 366) and the right to appeal (Section 374).
• Special Legislation: Various special laws like the Terrorist and Disruptive Activities (Prevention) Act (TADA), Narcotic Drugs and Psychotropic Substances Act (NDPS), and Protection of Children from Sexual Offences Act (POCSO) also stipulate capital punishment for specific offences.