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In the recent review of mercy plea, the Delhi government and the Ministry of Home Affairs has strongly recommended to the President to reject the mercy petition filed by one of the 2012 Nirbhaya gang rape-murder case convicts. In this case, the 23-year-old paramedic student was raped on the intervening night of December 16-17, 2012 inside a running bus in South Delhi by six persons and severely assaulted before being thrown out on the road. She died within 14 days.
The government also added that “this is the most heinous crime of extreme brutality committed by the applicant and there is no merit mercy petition.” However, the applicant, Vinay Sharma has now claimed that the jail authorities had without his consent submitted such plea with a mala fide intention and he seeks to withdraw it as he has not yet exhausted all other remedies available to him (curative petition before the Supreme Court under Article 137).
Akshay Kumar Singh, another convict of the above case, has filed a review petition by giving an absurd claim that death penalty must not be awarded as Delhi is a gas chamber and life is becoming short on its own due to the poisonous city.
What is a mercy plea?
Mercy plea is the last resort for convicts who have exhausted all available legal remedies for obtaining pardon/relief from their sentences. The convict approaches the President by filing a petition directly, or through prison officials, or through the Governor of the State where he is imprisoned.
The President and the Governor of the State have pardoning powers under Articles 72 and 161 respectively and they are advised by the Council of Ministers while exercising such powers (Article 74 and 163). They can grant pardon, suspend, reprieve, respite, remit or commute sentences of any person convicted of any offence. However, the pardoning power of the Governor does not extend to grant pardons in cases of death penalty or/ and in cases of the court-martial.
Important legal provisions:
- Article 72 provides, the pardoning power to the President of India, it says:
- In all cases where the punishment or sentence is by a Court-martial.
- In all cases where the punishment or sentence for an offence for an offence against any law relating to a matter to the executive power of the Union extends.
- In all cases where the sentence is a sentence of death.
- Article 161 provides, that the Governor of a State 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 against any law relating to matter to which the executive power of the State extends.
- Section 432 of Cr.P.C. provides, Power to suspend or remit sentences.
- Section 433 of Cr.P.C. provides, Power to commute sentence.
Grounds on which mercy plea can be granted/rejected:
- In his/her mercy petition, the person concerned is required to state the grounds upon which he/she requests for the grant of pardon.
- These grounds may not have any value in the eyes of law for exonerating the accused person from the offence, but they might play an important role in the release of the person by the President. The grounds, such as the convicted person is the only bread earner of the family or the physical fitness of the convict, his age or the court by chance committed any mistake may be taken into consideration at the time of disposal of the mercy petition.
- Mercy petition, delay in disposal: Death sentence commuted to life imprisonment.
The grant of mercy plea is an act of grace and cannot be claimed as a right. (Kehar Singh v. Union of India). If the grounds for acceptance/rejection are found to be arbitrary or unreasonable in nature, then the decision of the President or the Governor is subjected to judicial review.
Other instances of mercy plea petitions:
In the Afzal Guru Case, the applicant was convicted for his role in the 2001 terrorist attack on Parliament and had been on death row after his appeal to the Supreme Court was dismissed in 2005. His execution, due on October 20, 2006, was stayed by the government because a Clemency Petition was filed by his family to the President. His mercy plea was rejected by the President APJ Abdul Kalam by stating that his petition had no merit.
President Pranab Mukherjee has dealt with a total of 35 mercy pleas (31 rejected), including two failed petitions filed by the convict of the 1993 Mumbai serial blasts financier, Yakub Memon.
President R Venkatraman has till now rejected the most number of mercy pleas which is 45. While Pratibha Patil’s Presidential term saw 34 commutations and only five rejections. The most number of commutations have been given by President Rajendra Prasad-180 and President Sarvapalli Radhakrishnan with 57.
President Ram Nath Kovind rejected his first mercy petition, filed by Jagat Rai of Bihar, who was given Capital Punishment for killing six members of a family over a buffalo theft. He also recommended in a recent event that rapists who have been convicted under the Protection of Children from Sexual Offences (POCSO) Act should lose their right to seek a mercy plea, enunciating that women’s safety is a serious issue.
The Law Commission in its 2015 report noted the influence a president has on deciding mercy petitions by stating that, “A perusal of the chart of mercy petitions disposed by Presidents suggests that a death-row convict’s fate in matters of life and death may not only depend on the ideology and views of the government of the day but also on the personal views and belief systems of the President.”
Thus, it is essential that brakes on the disposal of mercy petitions must not be put as it only leads to more delay in imparting proper justice. Public welfare, one of the core objectives for punishment must also be taken into account while reviewing mercy pleas.
Authors: Shashank Khati from Symbiosis Law School, Pune and Anisha Goyal from Symbiosis Law School, Hyderabad.
Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.