Law relating to Mercy Petition: Explained

The Author, Yash Gupta, is 3rd Year law student at NMIMS, Bangalore. He is currently interning with LatestLaws.com.

INTRODUCTION

Despite its long-standing effectiveness as a means of retributive justice, the death sentence has sparked debate in India, a nation renowned for its compassion towards all living beings and being the birthplace of Mahatma Gandhi and Gautam Buddha. The death penalty was officially established in India by the enactment of Section 302[2] of the Indian Penal Code, marking the first legislative requirement for capital punishment in the country. While the death penalty was commonly utilized in India before 1980, it was not publicly acknowledged as a prevalent method of punishment. Despite the 35th Law Commission not recommending its abolition, the study thoroughly investigated this possibility. The Supreme Court extensively examined the constitutional validity of the Bachan Singh v. State of Punjab[3] case before adopting the idea of the ‘Rarest of the Rare Case.’ In the instance of Bachan Singh, the court elucidated the legality of the death sentence by referring to Articles 19[4] and 21[5], and thereafter affirmed its justification providing directives in the legal matter of Machhi Singh v. State of Punjab[6]. In all issues concerning the constitutional validity of the death penalty, the court has used Articles 72[7] and 161[8]. These articles are utilized to assess the legal procedures followed in imposing the death sentence, ensuring its legality, and providing a mechanism to identify wrongful convictions. Nevertheless, the Law Commission has pointed out that the commutation of a death sentence due to the violation of fundamental rights of convicts raises concerns about whether the current power of mercy is sufficient to prevent wrongful convictions. It is clear that the President often takes an exceptionally long time to make decisions on mercy petitions. Several legal cases have examined and discussed the Constitutional provisions regarding the death sentence, particularly the President's authority to grant pardons. In the cases of Madhu Mehta v. Union of India[9], Daya Singh v. Union of India[10], and Shivaji Babar v. State of Maharashtra[11], the Supreme Court prohibited the implementation of capital punishment for those on death row. Recent judicial decisions in India's compassion jurisprudence indicate a shift towards a de facto moratorium on the death penalty. This paper aims to analyse several parts of India's jurisprudence on mercy and explore how the Apex court is broadening the extent of this constitutional provision.

The constitutional and legal dimensions of the death sentence

The Indian Penal Code was the inaugural legislative code in India to include capital punishment. The aforementioned actions were carried out in accordance with sections 121, 132, 194, 305, 396, 307, 376(A,E), and notably, Section 302[12] which has been a subject of significant controversy. According to Section 302[13] of the Indian Penal Code, committing murder can lead to either a sentence of life imprisonment or the death penalty. Nevertheless, it fails to delineate the specific circumstances under which a life sentence is deemed a suitable penalty or when the death penalty may be imposed.

The process of deciding on and enforcing punishments is covered under the Code of Criminal Procedure. Section 367(5) of the Code established the death sentence as the usual punishment for murder prior to the 1955 revision. The court had to provide justification if it decided to impose a shorter sentence. This clause was removed in 1955. Following the 1973 amendment, section 354(3) of the statute limited the judge's ability to execute someone by requiring the courts to demonstrate specific justification.

In the case of Jagmohan Singh v. State of Uttar Pradesh[14], the legitimacy of Section 302[15] IPC was challenged, and throughout the proceedings, the updated sections of the CrPC were referenced. It was argued in this instance that the right to life is an essential requirement for the exercise of all the other rights specified in Article 19[16] of the Constitution. Therefore, legislation cannot limit this right unless it is done in the interest of the public and in compliance with proper legal procedures. The five-member bench concluded that the judge must consider all relevant factors, both mitigating and aggravating, in accordance with the established legal procedure outlined in the Code of Criminal Procedure. This is done before deciding whether to impose the death penalty or life imprisonment. Therefore, the decision is constitutionally valid and does not violate Articles 14[17], 19[18], and 21[19].

The case of Rajendra Prasad v. State of Uttar Pradesh[20] re-examined the constitutionality of the death penalty. The consensus was reached that murder would often warrant a life sentence as the appropriate penalty, but the death penalty should be reserved for situations involving ‘exceptional circumstances.’

The presence of ‘special reasons’ should be attributed to the perpetrator rather than the conduct. In this instance, the prevailing opinion among the judges was that if the jury were to find the defendant guilty of murder, it would be necessary for them to communicate with the state authorities, via the prosecutor, in order to ascertain the suitability of imposing the death sentence. Upon the state's verification of the charge, the court ought to solicit the substantiating material and reasons pertaining to the plea for capital punishment. The court's decision to impose the death sentence or not would be based on the state's ‘special reasons’ and the accompanying paperwork.

Due to conflicting viewpoints in the instances of Jagmohan and Rajendra Prasad, the question of the reasonableness of the death sentence was raised again in the Bachan Singh v. State of Punjab[21] case. The court's majority opinion determined that the death penalty, when used as an alternative form of punishment according to Section 302[22], does not infringe upon the rights protected by Article 21[23] of the Constitution, as long as it is only employed in extremely exceptional circumstances referred to as the ‘rarest of the rare cases.’

The concept that "life imprisonment is the norm and the death penalty is the exception" was strongly emphasized in the case of Machhi Singh v. State of Punjab[24]. It was argued that the death penalty should only be used in the most severe circumstances of great responsibility.

The possibility of carrying out an execution under the Indian Penal Code (IPC) has been extensively examined and argued from various perspectives thus far. These include the implementation of the ‘Rarest of the Rare Case’ principle, the constitutionality of the execution method, the consequences of a delay in execution, and the conversion of the death penalty to life imprisonment.

The Tihar Jail management asked the detainees involved in the Nirbhaya case (2012) to promptly submit a plea for clemency to the President under a strict seven-day timeframe. Prior to securing this ruling, the detainees had exhausted all other viable legal recourse. The mercy plea applies to all criminals, regardless matter whether just one of them applies. Prior to filing a mercy plea, the death sentence given by a sessions court must be validated by the High Court.

The individual who has been sentenced to death may submit a legal request for a review of their case to the highest court in the country, known as the Supreme Court. If the Supreme Court dismisses the appeal or upholds the death penalty, the convict or a relative has the option to request clemency from the President of India (as per Article 72[25]) or the State Governor (as per Article 161[26]).

Grounds of Appeal

In order for the perpetrator to be granted a pardon, a plea for compassion must be submitted based on specific criteria. In order to receive compassion, one must fulfil those prerequisites. Receiving a mercy petition on these reasons is not a legitimate entitlement for anyone. The outcome is contingent upon the accused's behaviour, their physical well-being, and the family's disadvantaged economic status. Provided that the prisoner exhibits civil behaviour during his trial. If it has been observed that an individual is making advancements in their lifestyle and doing their responsibilities competently. Subsequently, his plea for clemency will be approved. Furthermore, if the person subjected to capital punishment is unwell or suffers from a medical ailment that hinders their ability to lead a healthy existence. He shall be granted mercy at his request. If the defendant is the only source of income for his family and they are in a financially unstable condition, he will be granted clemency.

The individual in question must specify the reasons for their desire for a pardon in their mercy plea. Although these reasons might not be sufficient in court to clear the accused of the crime, they might be crucial in the President's decision to free the individual.

When deciding whether to grant a mercy petition, the court may consider various factors, such as the fact that the convicted individual is the family's sole provider, the convict's age, physical condition, or the fact that the law was extremely harsh.  In the 1988 case of Kehar Singh v. Union of India[27], the Supreme Court restated its position, ruling that the President's pardon is an act of grace and cannot be asserted as a right.

Need for the Pardoning Power

The rationale for the pardon power is that in every civilized nation, the authority to grant pardons is acknowledged and established as an act of benevolence and compassion inside the legal system.

The ability to grant pardons is based on the principle of promoting the common welfare and should be utilized with the aim of advancing public well-being, which is the rightful purpose of all forms of punishment.

Constitutional Provisions related to Mercy petition

As per Article 72[28], the President of India possesses the power to grant pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute the sentences of individuals who have been guilty of any offense. This include scenarios in which a court-martial imposes punishment or a sentence, circumstances where punishment or a sentence is issued for a violation of any legislation falling under the jurisdiction of the Union's executive authority, and cases where the penalty is capital punishment.

As to Article 161[29], the governor of a state has the authority to grant pardons, reprieves, respites, or remissions of penalty. Additionally, they can also suspend, remit, or commute the sentence of any individual who has been convicted of violating a law related to a matter under the jurisdiction of the state's executive branch.

In the case of Dhananjoy Chatterjee, sometimes referred to as Dhana v. State of West Bengal[30], 1994, the Supreme Court determined that the power conferred by Articles 72[31] and 161[32] of the Constitution might be used by both the Central and State Governments, rather than only by the President or Governor.

Mercy Petitions for death row convicts and Right to Speedy Trial

The premise that sustaining liberty necessitates a swift trial has been recognized. Should the preservation of freedom be extended to those who have been sentenced to execution by the Supreme Court? Before providing a response, it is essential to consider whether the individual in question has freedom or not. An argument might be made that the individual's liberty is curtailed by a legal procedure that is rational, fair, and impartial.

This individual was subjected to a penalty that was administered through a rational, equitable, and impartial procedure. Whether or if this punishment should be executed in a reasonable, fair, and just manner is a separate issue.

If the consideration of the right to a speedy trial is pertinent in deciding whether to approve mercy petitions, what course of action should be taken as a redress if the right is infringed? The Supreme Court provided diverse characterizations of these components in different rulings.

In the case of  T.V. Vatheeswaran v. State of Tamil Nadu[33], the appellant was sentenced to death, but the execution was delayed for a period of eight years, during which the appellant was isolated and confined to a single cell.

The main focus of the Apex Court was to determine if delaying the implementation of a death penalty reduces its gravity. Article 21[34] ensures the entitlement to life and freedom, subject only to the requirement of a fair, impartial, and rational legal framework. Additionally, it encompasses the entitlement to a prompt trial. The court recognized that prolonged detention for the purpose of awaiting the implementation of a death penalty is an inequitable, unreasonable, and illogical approach that infringes upon an individual's right to life and freedom. In this instance, the court decided to commute the death penalty to a life sentence due to the possibility that a two-year postponement in its execution may lead to its annulment.

The petitioners in Sher Singh v. State of Punjab[35] rely on the precedent set by the Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu[36]. contended that the petitioners' death sentence should be invalidated and substituted with a life sentence in prison due to the elapse of almost two years after the Trial Court imposed the death penalty. The court was tasked with determining whether a death sentence might be invalidated due to a delay exceeding two years in its implementation. In the Vatheeswaran Case, the Supreme Court ruled that there cannot be an absolute rule saying that a life sentence must always replace the death punishment when there is a long delay in carrying out the sentence.

After being found guilty, a person is entitled to take all legally available steps to have the death penalty against them declared invalid. A condemned person may, even after the court has firmly maintained their death sentence, take use of all appropriate legal channels to request a sentence reduction. The court decided that a lengthy delay alone would not be sufficient grounds to reverse the imposition of the death punishment.

In the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra[37], the petitioner contended that his execution should be avoided on the grounds of his juvenile status, his successful reformation in jail, and the considerable duration that had elapsed since the imposition of the death penalty. The petitioner contended that a significant postponement in executing the death penalty is necessary to justify invoking Article 21[38] and nullifying the capital punishment. The court acknowledged the absence of recognition in Sher Singh v. State of Punjab[39], and emphasized the need of considering factors beyond only delay when evaluating the potential commutation of the death penalty. Consequently, the court concluded that the death sentence in this particular case might be reduced, resulting in the substitution of the death penalty with a life imprisonment sentence.

In the case of Triveniben v. State of Gujarat[40], the High Court determined that there was an absence of a procedural mechanism for the expeditious settlement of legal disputes. Due to the prolonged delay in carrying out the execution, the request to invalidate the death punishment and substitute it with a life sentence was rejected. The issue presented to the Supreme Court was whether a life sentence should be replaced based on the passage of time. The court determined that the allocation of time was necessary for the effective execution of justice in the public's best interest. This decision was based on the acceptance of the case Sher Singh v. State of Punjab[41] and the reversal of the case Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra[42]. If there is a significant delay in the disposal process, the Trial Court or Appellate Court may evaluate the delay and its causes. Once a sentence was granted, it held legal validity and was obligatory, requiring strict adherence to the law. The delay in delivering a sentence does not render the execution unconstitutional. It would be incorrect to cite the same delay as a basis for challenging the execution, unless it was a factor that lessened the severity of the penalty. The Court acknowledges that establishing a specific time limit for execution would be capricious as it would contravene the guarantee of procedural fairness enshrined in Article 21[43] of the Indian Constitution.

In the legal case of Devender Pal Singh Bhullar v. State of N.C.T. of Delhi[44], the petitioner utilized Article 72[45] of the Constitution to appeal to the President for clemency, requesting the reduction of his death penalty. Nevertheless, the President rejected his appeal. The key issue in this case pertained to whether the court had the power of judicial review to tackle the problem of prolonged delays within the legal system. When considering the appropriate punishment for murder and similar crimes, the Court acknowledged the need to consider various factors including the nature of the crime, the motive behind it, the scale and impact of the crime on the community, the type of weapon employed, and other relevant considerations.

The Court acknowledges that the death sentence would be entirely warranted in circumstances where the murder was perpetrated in an exceptionally savage or heinous manner, resulting in a strong and extreme public outrage. Moreover, in cases when a crime has resulted in the unjustified and unexplained deaths of several innocent individuals, the application of capital punishment would be deemed justifiable.

However, the President or Governor had to carefully evaluate each of these factors while deciding whether to approve a mercy petition. Thus, it would be justifiable and logical for the President or Governor to utilize their power in such situations and decline calls for leniency. Ultimately, the court determined that it was unable to use its power of judicial review solely on the grounds of an unreasonable delay.

Nevertheless, the Supreme Court commuted a capital punishment to a term of incarceration for life in the case of Shatrughan Chauhan v. Union of India[46]. The defendant, who had previously been convicted of a grievous offense and sentenced to death by the court, was now seen as a victim as a result of the executive's prolonged delay, which the court determined to be a violation of their fundamental rights. The court concluded that any delay in the executive tent's activities constituted a violation of justice and rendered the death sentence unenforceable. The centre has challenged the court's approach on the case of 14 convicts who had their death sentences commuted to life sentences after a delay of 2-16 years. This is worth mentioning. This verdict also signifies the court's intention to abolish the death sentence in all instances, irrespective of their intricacy or gravity. Another significant feature of this case is that those accused by anti-terror legislation, such as TADA, would also be affected by this ratio. This is because the sentence imposed under the IPC or any special statute does not distinguish between those convicted under the IPC and those convicted under anti-terror laws. Therefore, this order has reversed the prior decision made by the two-judge panel in the case of Devender Pal Singh Bhullar v. State of N.C.T. of Delhi[47].

Although the Right to a Speedy Trial was not explicitly referenced in this case, the whole finding was based on the argument that a substantial delay in imposing the penalty constituted a breach of the basic rights outlined in Article 21[48]. Therefore, according to this judgment, it may be inferred that this rule restores the entitlement to a prompt trial for both the implementation of capital punishments and appeals for clemency.

Is the delaying of Mercy Petition a violation of Human Rights

The concepts of pardon, death sentence, mercy petition, and judicial reviews are interrelated and function as the transitory stages between life and death. If the mercy plea is intentionally delayed or refused without valid justification, convicts may have significant mental health problems. They may experience psychological distress as a consequence. In the landmark case of Mohd. Afzal Guru v. State of Delhi[49], the court established that a 14-day interval must be observed between notifying the convicted individual and their family members of the rejection of their plea for clemency, and the execution of the death penalty.

When there is an unwarranted and prolonged delay in either approving or denying a petition for compassion. The court must intercede and ascertain the suitable timing for adjudicating the course of action regarding the mercy petition. The court has previously asserted that it must treat a person's plea for leniency without discrimination, regardless of whether they are being charged with capital punishment for terrorist acts or any other allegations. Furthermore, it was stated that the prison superintendent had a duty to inform the convict's relatives of the prison superintendent's decision to reject his plea for leniency, allowing them to make their own arrangements.

Every constitutional responsibility must be executed with prudence and diligence. The mishandling and disregard for adequate procedures and mechanisms in dealing with mercy petitions result in the violation of the rights safeguarded by Articles 14[50] and 21[51] of the Constitution.

The Supreme Court, in the case of Maru Ram v. Union of India[52], held that all public authorities, including those established by the Constitution, are prohibited from acting in an arbitrary or dishonest manner. In relation to this matter, it is necessary to establish suitable restrictions and regulations. The Supreme Court, in the case of Maneka Gandhi v. Union of India[53], held that due process is indispensable and that Article 21[54] of the Indian Constitution inherently requires it. The utilization of power for capricious intentions is deemed undesirable. There is abundant evidence that the norms and processes regarding the evaluation of mercy petitions are flagrantly illegal and violate the human rights protections guaranteed by Article 21[55].

Changes in the law related to Mercy Petition

The Union Home Ministry put up many suggested amendments to the statute regarding mercy petitions in February 2020. The Home Ministry of India has applied suggesting amendments to the Supreme Court's rules pertaining to the time limit for death row convicts to submit a curative plea. The ministry proposed a restriction on the time frame for filing a mercy plea by the offender to seven days, starting from the moment the court issues the execution warrant.

Currently, there is no specified timeframe for presenting a mercy petition. This might potentially result in a significant delay in the overall process of dispensing justice. The delay in presenting a petition for compassion also constitutes a violation of Article 21[56] of the Indian Constitution, which guarantees the Right to Life. To ensure the protection of the rights of victims, their family, convicts, and the overall well-being of society, it is necessary to submit a mercy petition within the designated timeframe. The convicts may experience stress, worry, and mental agony due to a prolonged and unnecessary wait in presenting a mercy appeal.

The government aims to modify the existing legislation on Mercy petitions in order to prioritize the interests of the victims over those of the convicts, so making the criteria more victim-centric. Unnecessarily prolonging a mercy plea not only wastes the court's valuable time and resources, but also undermines public trust in the Indian judicial system.

Suggestion and Conclusion

In my view, mercy petitions play a crucial role in preserving the lives of several innocent victims. Therefore, it is imperative for our judicial system to take prompt and resolute action upon receiving such petitions. There exist several instances when the convicted individuals endure hardship due to the prolonged wait in reaching a final judgment; the government should carefully consider these cases and ensure that justice is served. For instance, we are aware of a case in which the accused individual was imprisoned throughout the duration of their trial prior to being acquitted. Hence, it is imperative for the government and junior lawyers to act in order to mitigate the anguish experienced by these individuals.

A mercy petition can have both positive and negative consequences, depending on the specific scenario and circumstances. It can be advantageous or disadvantageous. The presence of superfluous obstacles and protracted delays in granting approval for the mercy petition might result in significant distress for both the offenders and the victims. This might inadvertently impede the administration of justice, so depriving victims of equitable and impartial legal recourse. This will exacerbate the victim's anguish and distress. In order to ensure efficient operation of the Indian judiciary, it is imperative to establish a well-defined time limit and procedures to prevent excessive delays in filing and granting mercy petitions.

It may be inferred that, despite notable progress in the Indian legal system and the acknowledgment and use of human judgment, there are still several deficiencies. The operation of our judicial system is deficient in terms of process and characterized by a high degree of dynamism. Hence, in order to avert comparable mistakes and ensure the well-being of the general populace, we necessitate an appeal for compassion.

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