Aspect of Mercy petition in India and Judicial intervention

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Former Punjab CM Beant Singh’s assassin Balwant Singh Rajoana’s mercy petition was accepted by the Home ministry in 2019. But the decision could not be implemented as the Council of Ministers didn’t send the file to the President. Recently the Supreme Court criticised the government for their delay and scheduled a hearing for that.

This created a larger debate on the relevance of mercy petition itself and the pardoning power of Executive in India.

What is a mercy petition?

A mercy petition is filed by a convict to change his/her punishment (especially capital) into a lesser form of punishment. It is also called clemency petition/plea or executive clemency.

Mercy Petition can be exercised after all the legal remedies were exhausted. (Legal remedies include all the remedies available under prevailing law and Constitution).

A petition can be filed with the President (under Article 72 of the Indian Constitution) or the governor (under Article 161 of the Constitution).

This provision of pardoning power or mercy towards convicts was first originated in the United Kingdom. Later the concept made its presence in the United States of America, India, Canada, etc.

What is the procedure to file a mercy petition?

A convict under a death sentence is eligible to make the mercy petition. But it should be filed within seven days, after the dismissal of her/his appeal by the Supreme Court and intimation of the same to the convict by the Superintendent of the Police (SP).

First, A written petition is filed before the President/Governor either by the convict or his/her relative on his/her behalf. The petition can be filed on the following grounds:

    • The convicted person is the sole bread earner of their family.
    • The physical/mental fitness of the convict or his/her age.
    • Law for the crime committed was quite harsh.
    • The court committed an error or mistake unknowingly.

The grounds might play an important role in the decision-making process.

Second, the Petition will be forwarded to the Ministry of Home Affairs for comments and recommendations.

Third, the Home Ministry analyses the merits of the Mercy petition. During this phase, the Ministry also discusses the matter with the concerned State government.

    • After this, the Home Minister makes the recommendation on Mercy petition to the President.

Fourth, As per the advice of the Council of Ministers (CoM), the President can either accept or reject the mercy plea. There is no time limit prescribed for the President to exercise this power.

The Governor is also empowered with pardoning powers, but the Governor cannot pardon the Death sentence. However, he can commute, remit, reprieve the death sentence for the offences against the law, which is under executive power of the State.

What is the reason to have mercy petition?

First, The option for mercy can result in good conduct by the Convict in the prison. This helps in solving the issue of prison discipline.

Second, Mercy petition adds a human touch to the country’s judicial process. The mercy petition process judges the convict based on humanity and not on legality (concluding judgement based on evidence and witnesses).

Third, Mercy Petition can save an innocent person from being punished due to doubtful conviction or miscarriage of justice. Thus, this process is very significant as it provides an opportunity to correct the errors made during the judicial process.

Fourth, pardoning is provided with the belief that it will serve for better public welfare and for the greater public good.

Challenges with the mercy petitions in India:

First, there is no time limit given in the Constitution for a decision on Mercy Plea. There are many instances when the mercy petitions are kept pending for a long period. This is seen as a violation of Human Rights by legal experts. The convicts face mental, emotional and physiological trauma during the delayed period.

Second, the experts also say, “Mercy petition is dealt largely without mercy by the successive governments”. They point out reasons such as

    • President not bound to accept the Mercy Petitions. It is the discretion of President
    • The critics also point out the information released by the RTI Act, “There are 77 mercy pleas decided by successive Presidents between 1991 and 2010. Of these 69 were rejected and only 8 were accepted”.

Third, the President is not bound to state the reasons for the rejection of Mercy Petition. It results in a lack of transparency in the process.

Judicial interventions on Mercy petition:

First, In Ranga Billa Case: the court mentions that “nature and ambit of the pardoning power is entirely a discretionary remedy. Providing grant or rejection of petition need not state the reason for the actions.

Second, In the Kehar Singh vs Union of India (1989) case: The court mentions “pardon by the President is an act of grace. Therefore, pardoning cannot be claimed as a matter of right. The power exercisable by the President is exclusively administrative in nature, and it is not justifiable.

Third, In the Dhananjoy Chatterjee (alias Dhana) vs the State of West Bengal (1994) case: The Supreme Court said that “The pardoning power under Articles 72 and 161 can be exercised by the Central and State Governments. The powers shall not be exercised by the President or Governor on their own”.

Fourth, In Mohd. Afzal Guru vs. State of Delhi (2014) case: The court said that “there has to be 14 days gap between the rejection of mercy petition and actual execution of the death penalty”.

Way forward:

Pardoning power of the executive is very significant as it corrects the errors in the judicial process. Timely disposal of mercy petition is a boon. To ensure that the government have to fix the time frame and create certain binding conditions to exercise the Mercy petition. This will facilitate smooth functioning of Indian democracy.

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