Mercy Petitions: The Need for Regulation

By Viti Bansal

A Public Interest Litigation (PIL) has been filed in the Supreme Court seeking framing of proper procedures, rules, and guidelines for the disposal of mercy petition in an effective and time-bound manner. According to the petitioner, the rights of both the convicts as well as that of the victims under Article 14 and Article 21 of the Constitution of India are violated due to lack of definite procedure for the disposal of mercy petitions.

Current Framework on Mercy Petitions

Article 72 empowers the President to remit the sentence of any person convicted of any offence punishable by death. The question as to the existence of any procedure for filling and the disposal of mercy petitions, posed by Mumbai resident Mr. Vats Raj in his Petition was answered by the Ministry of Home Affairs on August 9, 2008, stating that “There is no written procedure followed for examining power to grant pardon or to suspend, remit and commute death petitions under Article 72 which could be provided to the appellant.”

A person sentenced with the death penalty may present the mercy petition prepared to the President of India. It is now beyond controversy that the President is bound to act in accordance with the aid and advice of the Council of Ministers, the Apex Court having laid down this principle authoritatively in Shamsher Singh & Anr. v. State of Punjab.

Current legal position

The Supreme Court in Maru Ram v. Union of India observed that there was a need for guidelines while recognizing that all public power, including constitutional power, must not be exercised arbitrarily or in a mala fide fashion. The court observed that no legal power can run in an unruly manner. The Supreme Court in Kehar Singh v. Union of India differed from this position in holding that it may not be possible to lay down any precise, clearly defined and sufficiently channelized guidelines due to the wide amplitude of power under Article 72. The court observed that a wide variety of cases with facts and situations cannot be contemplated in order to frame specific guidelines.

Need for standard procedure

The existing framework provides no guidelines that the government or the President is bound by, in either proceeding with the application for granting mercy or for accepting or rejecting the same.

Since the nature of pardoning power under the Constitution is executive, there exists no opportunity of a personal hearing before the authorities. As a result, it is quite possible that in absence of a prescribed form, the petitioner who filed a simple application may not provide information its entirety because of either sheer ignorance or even in a deliberate attempt to hide certain information.

Under the present scheme of granting pardon, if one person gets relief on one ground the other person may or may not be entitled to relief on the same ground. For instance, the facts of R. Govindasamy case and Ravji case are almost identical. In both of these cases, the accused persons killed five persons each and were convicted on the circumstantial evidence. In the first case i.e. the R. Govindasamy case, the sentence of death was converted into imprisonment for life but in the other case, no relief was given.

Article 21 of the Indian Constitution prohibits the deprivation of the right to life and right to personal liberty, except according to a procedure established by law. The Apex Court in Maneka Gandhi v. Union Of India, clarified that a fair procedure is the natural demand of Article 21 and no procedure itself indicates the possibility of arbitrary exercise of the power. It is evident that the lack of procedure in dealing with mercy petitions stands in contravention to principles enshrined under Article 21.

Here, reference must be drawn to the case of Om Prakash v. State of Jammu and Kashmir, which elucidates on the permissible extent of discretionary power of government. The Apex court, in this case, observed that while the State can refuse to enter into a relationship with anyone, in choosing to enter into the relationship, the same cannot be done arbitrarily. The State cannot choose any person it likes for entering into such a relationship and discriminate between persons in similar circumstances.

Concurrently, Article 14 prevents arbitrary discretion from being vested in the executive. In State of West Bengal vs. Anwar Ali Sarkar, the Apex court held a law to be invalid on the ground that the use of vague expressions, like ‘Speedier Trial’, conferred a wide discretion on the government, which can be a basis of unreasonable classification. The possibility of arbitrariness and discrimination in the present framework, therefore, stands as unconstitutional.

Recourse in Judicial Review

The jurisprudence on pardoning power has moved way ahead from the time of the Supreme Court’s Ranga Billa case where the court dismissed the petition against the arbitrary exercise of pardoning power while observing that the term “pardon” itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not be reasoned. The pardon was seen as an act of grace, not to be claimed as a matter of right. In Swaran Singh v. State of U.P. the Supreme Court held that when power of remission has been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get the approval of the law and in such cases, “the judicial hand must be stretched to it.”

Lack of definite Time Period to dispose of Mercy Petition

The absence of standard procedure for filing and disposing off of mercy petitions also entails a lack of specific period within which these petitions are to be dismissed or accepted. This lacuna affects not only the convict in such cases but also the families of the victims.

It is now a settled jurisprudence, as explicated in the case of Ajay Kumar Pal v. Union of India And Another, wherein the Supreme Court allowed the Writ Petition with the holding that the Court is empowered to commute the death sentence into life imprisonment after hearing the grievance of the convict and satisfying itself that delay in execution was not caused at the instance of the accused, provided such delay was undue, unexplained and inordinate delay due to either mere pendency of mercy petitions or failure to take note of/consider the relevant aspects.

In quite a few cases there is a prolonged delay in disposal of the mercy petitions and in such cases, the convicts are able to take the advantage of the delay and get their death sentences remitted on this ground alone. This denotes injustice to victims and their families as well as their incredulity in the system.

International standards

According to Article 7 of the ICCPR (International Convention on Civil and Political Rights), explicitly provides against torturous, cruel, inhuman and degrading treatment or punishment. As expounded in Shatrughan Chauhan & ORS. v. Union of India, undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture.

Article 6 of the ICCPR of which India is a party to, establishes the right to life as an inherent, inalienable right that cannot be taken away arbitrarily. Article 7 of the Universal Declaration of Human Rights, enshrines equality of all persons before the law and equal protection of the law. Any discriminatory treatment or incitement to such discrimination stands in violation of this provision of law. This indicates that lack of apropos procedure, with scope for unintelligible differential treatment in this regard, is inconsistent with international standards.

Conclusion

While the Indian judicial system recognizes the fallibility of human judgment being undeniable even for the most trained minds, in providing recourse via mercy petitions, the lack of defined procedure and proper guidelines juxtapose the pardoning power, renders the same as otiose. There is a need of a prescribed format of a mercy petition so all requisite information is before the decision-makers.

While the Supreme Court’s observation of the uniqueness of each mercy petition stands, a standardised set of grounds, that ought to be considered in granting or rejecting mercy petitions, is needed. In absence of definite grounds entailing relief, the subjectivity of each government regime creeps into such decision making. The pendency of mercy petition continues to be a major problem. Therefore in the absence of defined time period for disposal of mercy petitions, even the mechanism for judicial review is rendered redundant because the case merely lingers adding to the apprehensions of both the convict and the victim.

The suggested modifications would eliminate the possibility of arbitrariness in exercising discretion and ensure that the petition does not endure beyond a certain time, and timely relieves both the convicts and the families of the victims of the apprehension of what is to come.

[The author is a second-year B.A. LLB student from Gujarat National Law University with an espousing interest in Criminal Law, Constitutional Law, and their confluence.]

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