The Article is written by Pushti Dublish pursuing BA-LLB from Galgotias University.
This article aims at highlighting about the mercy petition as well as an update to the Nirbhaya case where the mercy petition came into play.
According to the Constitution of India, mercy petition is the last resort for a convict which can be taken when he is convicted for the death penalty i.e. given in rare cases. It can be a life saver or a life taker.
It is basically a petition filed, where the convict approaches the president directly or through any prison official or through the governor of the state/UT where he is imprisoned, when the Supreme Court announces the final judgment in a case involving capital punishment.
Mercy petition has been enshrined in Article 72 of the Constitution of India. It says –
Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases
1. The President shall have 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
· in all cases where the punishment or sentence is by a court Martial;
· in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
· in all cases where the sentence is a sentence of death
2. Noting in sub clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.
This article states about the President‘s power to grant pardon, reprieves, respites or remissions of punishment or to commute the sentence of the convicted person.
· Pardon means that the vindication of the offender from all the punishment and sentence and to place the offender in a position as if he has never committed the offence.
· Reprieve means temporary suspension of death sentence.
· Respite means when the convicted person is awarded a lesser punishment on the basis of some special grounds.
· Remission means only the amount of sentence is reduced without any change in the character of the punishment.
· Commute changes the degree of punishment.
Therefore, a convict can approach the president for his mercy petition under Article 72. The president can review the punishment given by the court in case of the death penalty. The president can take his decision on the recommendation of the Ministry of Home Affairs. The governor cannot be approached by the convict in case of capital punishment as he does not have jurisdiction of the death penalty matters. A mercy petition and capital punishment go hand in hand which means that whenever cases of capital punishment arise, a mercy plea is filed by the death row convict. In the case of Kehar Singh v. Union of India 1988, The Supreme court held that it is a discretionary power of the President and one cannot claim it as a matter of a right.
Taking the historical point of view for the pardoning power or the mercy petition, this can be interpreted that the pardoning power was more to do with power and not with justice. In Greek, the power of clemency was vested to the people and with the sovereign, where the practice was of taking out the polls of the social grants to the mercy petition to the convict and the limit to the poll was barred by at least 6000 and because of which the mercy petition had the difficulty to be granted and so was rejected. And in ancient Rome, the power to grant the mercy petition was concerned with political power. Where the pardoning power of India has been enlightened by the Britain system, where the power of clemency is been exercised on the advice of the Ministry of Home Affairs.
Taking consideration of the total mercy petition granted from 1950 till now is 308 out of 440 which came into effect by the tenure of 14 Presidents of India.
The main purpose behind the pardoning power is that no stones should be left unturned which means that no judicial error should be left while dealing with such a grave punishment. The purpose of adding the mercy petition under the pardoning power can be categorized for the two kinds of convicts.
· One guilty for the offence
· One who is innocent but he is convicted wrongly
In most of the cases, the mercy petition has been rejected and it does not mean that the system is functioning well. There are a number of cases where sometimes both the lower courts can do the miscarriage of justice and this miscarriage of justice can be corrected only in the extended period of prison. Where, this miscarriage can create a trauma which is known as death row phenomenon which includes the physical and mental torture as well.
Due to miscarriage of justice, no innocent person should be guilty of an offence which he has not committed. Therefore as a last resort, pardoning power helps an innocent person from being punished for a crime or to save him from an uncertain conviction. This power has a two – fold benefit. Firstly, it helps in maintaining the conduct of the convict in the prison as well as helps in solving the issue of prison cell discipline.
WHO CAN FILE A MERCY PETITION
A convict who has been given a sentence of death can file a mercy petition within a period of seven days after the date on which the Superintendent of jail informs him regarding the rejection of the appeal or special leave to appeal by the Supreme Court.
GROUNDS FOR FILING A MERCY PETITION
· The convict needs to mention the grounds on which he is requesting for the pardon.
· The mentioned grounds by the convict do not have any value in the eyes of law but it plays a vital role in the release of the convict by the President.
For example: – grounds like the convict is the only earning person in the family, or his age or if there is any miscarriage of justice by the court etc can be taken into consideration while considering the mercy petition.
PROCEDURE FOR FILING A MERCY PETITION
· The procedure is commenced by filing a mercy petition with the President under Article 72 of the Constitution of India. The petition is to be filed within a period of seven days after the date on which the jail Superintendent informs him regarding the dismissal of appeal.
· The petition is sent directly or through any prison official to the President. Then the President seeks advice from the cabinet.
· The Ministry of Home Affairs inspect the appeal and before suggesting any advice to the President, the advice of the State concerned is taken.
v There is no written procedure to file a mercy petition
RECENT POSITION OF NIRBHAYA CASE
One of the most emerging point of view with the mercy petition can be seen in the Nirbhaya Gang rape case, 2012. In which a 23-year-old physiotherapist was brutally raped by 6 of the people which included 5 adults and 1 minor, where one of the adults committed suicide in the Tihar Jail itself and the Minor (juvenile) was released in 2015. Further, four convicts were sentenced to the death penalty. Further, the four left Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Thakur (31), filed the mercy petition before the president by taking the view of death row phenomena and was rejected by the virtue of which they had lost all the legal remedies to lower down the punishment and now the recent order has been made to hang them on 20 March 2020.
This pardoning power of executive is included in the Constitution of India so that there will be no errors in the decision taken by the judiciary. The Article 72 and Article 161 of Indian Constitution have given the pardoning power to the president and the Governor respectively. Where the mercy petition can be filed to the president of India and he by taking the advice of the Ministry of Home affairs can reject it or can pass it. The main purpose of serving it that no stone should left unturned and no loopholes should be there and also the accused should not be adjudged in an incorrect manner. But as justice is delayed in the cases of Mercy petition because there is no fixed time frame within which the President needs to decide the rejection or the acceptance of the mercy petition therefore A fixed time frame must be specified for the President which will further help the death row convicts in dealing with an undue trauma in the extended period of prison as JUSTICE DELAYED IS JUSTICE DENIED.
- Krishnadas Rajagopal (2020). Review of President’s rejection of mercy plea is very limited: Supreme Court. [online] The Hindu. Available at: https://www.thehindu.com/news/national/review-of-presidents-rejection-of-mercy-plea-is-very-limited-supreme-court/article30675944.ece [Accessed 10 Mar. 2020].
- Lawtimesjournal.in. (2020). [online] Available at: http://lawtimesjournal.in/mercy-petition/ [Accessed 10 Mar. 2020].
- Times Now Digital (2019). No mercy petitions for brutal rapes, indicates President Kovind: What is a mercy petition? [online] @TIMESNOW. Available at: https://www.timesnownews.com/india/article/no-mercy-petitions-for-brutal-rapes-indicates-president-kovind-what-is-a-mercy-petition/523981 [Accessed 10 Mar. 2020].
- Kehar Singh v. Union of India (1989) 1 SCC 204.
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