This article is written by Seep Gupta, a student currently pursuing B.A. LL.B. (Hons) from the Institute of Law, Jiwaji University. This is an exhaustive article which deals with whether mercy petition is a boon or a bane in India.
Table of Contents
Introduction
Mercy petition is a type of petition which can be filed by an accused to the President asking him to change his order of capital punishment into life imprisonment. A convict who has been awarded death punishment can file for a mercy petition within a period of seven days after the date on which the jail superintendent has informed him about the rejection of his appeal or special leave petition from the Supreme Court. It is the last constitutional resort which the accused has. A convicted person has the right to seek clemency from the President.
Different aspects and laws related to Mercy Petition will be discussed in this article. Is Mercy Petition a boon or bane in India? Both the arguments which are in favour or against the mercy petition will be discussed in this article briefly and in a concise manner.
Definition of Mercy Petition
The idea of Mercy Petition is followed in many countries like the United States of America, the United Kingdom, Canada, and India. The hope of being pardoned one day compels the prisoner to behave within the norms and discipline of prison institutions. Everyone has the basic right to live. It is also mentioned as a fundamental right mentioned under Article 21 of the Indian Constitution.
Mercy Petition plays an important role in saving the life of a convict who has been awarded the death or capital punishment under the court and also from the miscarriage of justice. There are many times where the court has pronounced a judgment that led to the grave violation of human rights and also in the miscarriage of justice or in doubtful conviction.
It is the basic right of the convict to seek mercy from the republican head of the State i.e. from the president to grant him mercy and to reduce the gravity of his punishment.
Legal provisions related to Mercy Petition
The underlying philosophy of the mechanism attached to mercy petition is that every socialized or civilized citizen recognizes the act of pardoning or the act of forgiving as gracious and full of humanity. Even in ancient Vedic and Hindu culture, the act of forgiveness is a noble act and a person who forgives others is held in high esteem.
The legitimate objective or the purpose of serving punishment is for public welfare and the primary object of pardoning the convict is for the public good. Therefore the pardoning power is exercised in law on the grounds of public welfare and good.
Mercy petition or executive clemency is exercised in several parts of the world. Below are the briefly discussed legal provisions related to mercy petitions around the world and in India.
Law related to Mercy Petition in the U.K. and in the U.S.A.
In the United Kingdom under the provisions given under the common law provisions, the queen had the power to forgive any type of crime, even the heinous one in an absolute manner. The queen has absolute power to forgive even the deadliest and unfettered crimes. This provision of pardoning power or mercy was first originated in the United Kingdom and from there it spread to other countries such as the United States of America and in India. In the U.S. Constitution, the provisions related to executive clemency are given in Article II Section 2, Clause 1.
In the Constitution of the United States of America, ‘the President has the power to grant pardon to the offences which are committed against the United States of America except in the cases related to impeachment.
The power of the President is only restricted to the cognizable offences given under federal law. The President can grant pardons, partial pardons, commutation of sentences, partial commutation of sentences, remissions of fines, and forfeiture.
The President of the U.S.A. has the right to deny or accept all the pardon petitions. Contempt of courts does not come under the pardonable offences. It is not the offence against the state but it is the offence against the dignity and decorum of the court.
In the United States of America, the pardoning power can be exercised in absolute, unfettered, and in an unrestricted manner.
Law related to Mercy Petition in India
In India, unlike the U.S.A. the pardoning power is not absolute, unfettered, and unrestricted. It is subjected to the guidelines prescribed by different judicial bodies which change from time to time.
In India, the pardoning power is given under Article 72 of the Indian Constitution. In this article, it is given that in all cases where the punishment has been awarded by the court-martial or cases where the punishment is a death punishment, the president has the right to grant a pardon or to prolong, suspend or cancel the punishment or to remit or commute the sentence of the person accused of a crime by the court. This power of the president to grant mercy can be exercised for the conviction by the amnesty or for under trial prisoners.
In the case of state jurisdiction, the governor of the state has the same powers as president to grant remit, pardon, to reprieve or remission of the punishments or to suspend it or to commute the sentence of any person who has been convicted of any crime or matters which comes under the jurisdiction of the state.
It is given in Article 161 of the Indian Constitution. The power given under these sections can be exercised by the central and state government respectively. The Head of the State is bound by the advice of the state government.
Grounds for filing Mercy Petition
In the mercy petition, the person is required to state the grounds for which he demands the mercy. These grounds are necessary to grant pardon and play a crucial role in the release of an accused by the order of the president. The act of mercy is not the right of the prisoner. He cannot claim it. The mercy or clemency is granted on the grounds based on his health, physical or mental fitness, his family financial conditions as he is the only sole earner of bread or butter or not.
Powers of President in granting Mercy Petition
During the British reign, the power of pardon or clemency was vested in the hands of the British monarch. Earlier, this power was absolute, unfettered, and unrestricted without any judicial scrutiny. Slowly, this power of pardon slid into the Indian Constitution. From 1935 onwards, after the commencement of the Government of India Act this power of pardon is given in Section 295 of the Act. However, there is not any single section in the Government of India Act 1935 which is corresponding to Article 161 of the Indian Constitution.
The President of India has been granted pardoning power under Article 72 of the Indian Constitution. However, any provision of this law does not affect any person in armed forces. However, a similar type of power on the parallel lines has been granted to the governor of the state which is given under Article 161 of the Indian Constitution.
Some sections of the Criminal Code of Procedure also deal with the power of pardon. It is given in Sections 432, 433, 433A, 434,and 435. The power of pardon is also described in Section 54 and 55 of the Indian Penal Code 1860.
The President grants a mercy petition on the advice of the Home Minister. This power of the president is extended to the whole of India. The Indian provision of executive clemency or the mercy petition is not based on the British system rather it is based on the American system. In Britain, the act of pardoning is based on the act of grace or has some royal connotation, but in the U.S.A. this act is purely out of the constitutional regime.
This power is exercised by the President under the provisions and guidelines given in the Indian Constitution. It enjoys high status under the Constitution. The power of pardon is granted by the judicial authority with the belief that it will serve better for the public welfare and for the greater public good by inflicting lesser punishment than what was actually fixed in the judgment given by the court. The exercise of the power granted in Article 72 depends or varies as per the facts and circumstances of each of the cases.
Changes in the law related to Mercy Petition
The Union Home Ministry in February 2020 suggested making certain changes in the current laws related to mercy petitions. The Home Ministry of India filed an application suggesting changes to fix a time limit for death row convicts to file a curative petition in the Supreme Court and only seven days of certain time period should be provided for filing the mercy petition from the date of issue of death warrant from the court.
In the current scenario, there is not any fixed time period for filing a mercy petition. This can delay the whole procedure of granting justice. This delay of filing of mercy petition is the violation of the Right to Life too which is given in Article 21 of the Indian Constitution. The fixed time period for filing of mercy petition is required for protecting the rights of victims, their families, convicts, and the greater public welfare. Prolonged and unnecessary delay in filing of mercy petition can inflict mental trauma, anxiety, and stress upon the convicts.
The aim of the government to bring the change in the present laws related to Mercy petition is to make the guidelines more victim-centric and not convict-centric. Because of unnecessary delay in filing of mercy petition, the court’s precious time and resources get wasted and this can also shatter the faith which the public has in the Indian jurisdiction system.
Is the delaying of Mercy Petition a violation of Human Rights
This death penalty, the mercy petition, power to pardon, court reviews are interlinked with each other and these act as the stages between life and death. Unnecessary delay in approval or rejection of the mercy petition and intentionally procrastinating it can inflict serious mental health problems in convicts. This can mentally torture them. In the major landmark case of Mohd. Afzal Guru vs. State of Delhi, In this case, the court said that there has to be 14 days gap between the communication of rejection of mercy petition to the convict and his family members and actual execution of the death penalty.
When the delay in approving or rejecting the mercy petition is unexplainable, unreasonable, and exorbitant. It is the duty of the court to step in and should decide the reasonable time to dispose of the mercy petition. It has already been said by the court that whether a person is given the death penalty for terrorist charges or for any other charges, there should not be any distinction by the court in disposing of their mercy petitions. It was also said that it is the duty and responsibility of the jail superintendent to inform about the rejection of the mercy petition of the convict to his family members so that they can make their plans and arrangements for travelling.
Every constitutional duty must be fulfilled with due care and diligence. Constitutional rights such as Article 14 and Article 21 of the Constitution are violated due to unnecessary delay of mercy petition and lack of proper procedure and system that deals with disposing of mercy petitions.
The Supreme Court in Maru Ram vs. Union of India said that constitutional powers and all public powers should not be exercised in an arbitrary manner and in a mala fide manner. There should be some proper restrictions and proper guidelines regarding that. The Apex court in Maneka Gandhi vs. Union of India said that fair procedure is required and it’s the natural demand of Article 21 of the Indian Constitution. There should not be any arbitrary exercise of powers. It is clear evidence that a lack of procedure and laws related to disposing of mercy petitions stand in contravention with the provisions enshrined in Article 21 and are clear violations of Human rights.
Has Mercy Petition proved to be a boon or bane in India
From the above-mentioned articles of the Indian Constitution i.e. Articles 72 and Article 161, both of these articles do not provide proper guidelines and laws related to speedy disposal of mercy petitions. Both the governor and the president are not granted any fixed time period for disposing of mercy petitions. Because of this lacunae, they enormously delay or procrastinate the disposal of mercy petitions. This unnecessary delay or unreasonable pending in disposing of mercy petitions, convicts suffer unusual mental agony, anguish and it directly affects the victims because they do not get justice at the proper time.
The government is totally ignorant of the pain and suffering of death row convicts or it intentionally chooses to avoid it. They behave in a very reckless manner and in a very ignorant way.
Mercy petitions are crucial because I do believe that living is the most beautiful thing and talking of executing the death penalty in a current scenario where most of the countries have already put a clear abolition and prohibition on the death penalty is totally justified. No human deserves such torture despite the fact that he is a criminal and everyone should be given one chance to redeem himself and to repent his wrong deeds.
It acts as both boon and bane because the power of pardon is not a new concept it has already been there in most of the spiritual texts and in bygone laws but when it comes to execution of the power of pardon we are clearly failing and lacking proper strategies and laws.
Appropriate and specific laws and provisions are required to reduce the agony and suffering that are being caused by the exorbitant delay of the mercy petitions in the current scenario.
Conclusion
In my opinion, without diving much deeper into the current scenario. I feel the mercy petition should have some restricted conditions and time limits. Mercy petition acts as a double-edged sword which can be both boon or bane depending on the situation and circumstances. Unnecessary hurdles and delays in approving the mercy petition can cause severe discomfort to both the convicts and the victims. This can unintentionally delay justice and victims can never get access to proper and unbiased justice. This will further intensify the victim’s pain and suffering. We need a proper limitation period and proper policies to restrict the unnecessary delay in filing and granting mercy petition for proper facilitation and smooth functioning of the Indian judiciary.
References
- http://www.legalservicesindia.com/article/2026/Mercy-Petition-Boon-or-Bane.html#:~:text=Mercy%20Petition’s%20timely%20disposal%20may,deference%20to%20public%20opinion%20etc.
- https://www.drishtiias.com/pdf/mercy-petition.pdf
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400110
- http://lawtimesjournal.in/mercy-petition/
- https://shodhganga.inflibnet.ac.in/bitstream/10603/225000/9/09_chapter%205.pdf
- https://criminallawstudiesnluj.wordpress.com/2020/01/26/mercy-petitions-the-need-for-regulation/
- http://ijlljs.in/wp-content/uploads/2015/08/5-HUMAN-RIGHTS-VIS-%C3%80-VIS-INORDINATE-DELAY-IN-DISPOSAL-OF-MERCY-PETITION.pdf
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