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Published : April 12, 2016 | Author : Prashanti
Category : Criminal law | Total Views : 2801 | Rating :

Miss. Prashanti Upadhyay ,LL.M, Student, Law College Dehradun, Arcadia Grant P.O. Chandanwari, Premnagar, Dehradun, Uttarakhand- 248007

The philosophy underlying the Mercy Petition Boon or Bane

Mercy Petition lies in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction. The hope of being pardoned itself serves as an incentive for the convict to behave himself in the prison institution and thus, helps considerably in solving the issue of prison discipline also. The concept of Mercy Petition is followed in many nations like USA, UK, Canada etc. including India.

In India, the power to grant pardon is entrusted to the President and the Governors of various states under Article 72 and Article 161 of the Constitution. It adds a human touch to the country’s judicial process by conferring powers to grant pardon or show Mercy to criminals sentenced to death. They can review the applications without having to view it from a legal angle like that of legal experts who base their opinions solely on the basis of available evidence and the testimony of witnesses.

There is no time limit given in these two Articles of the Constitution of India for Mercy Plea. These Articles have no binding effect on the President and the Governors of the states to accept all the Mercy Petitions.
The courts of civilized states have recognized and acknowledged that a prolonged delay in executing a death sentence can make the punishment inhuman and degrading. The protracted anguish of alternating between hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of not only the convict but also his family should not be allowed in civilized societies.

The Supreme Court in Ranga Billa Case called upon to decide the nature and ambit of the pardoning power of the President of India under Article 72 of the Constitution. In this case, death sentence of one of the appellants was confirmed by the Supreme Court. His Mercy Petition was also rejected by the President. Then the appellant filed a Writ Petition in the Supreme Court challenging the discretion of the President to grant pardon on the ground that no reasons were given for rejection of his “Mercy Petition”. The court dismissed the Petition and observed that it is entirely a discretionary remedy and grant or rejection of it need not be reasoned. Again, Supreme Court in Kehar Singh v. Union of India [1989 (1) SCC 204] reiterated its earlier stand and held that the grant of pardon by the President is an act of grace and therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusively of administrative nature is not justifiable.

It is a misnomer to describe the Petitions made to the President and Governors under Articles 72 and 161 of the Constitution by convicted persons as Mercy Petitions. The Constitution confers a right on such convicts and a duty on the Presidents and Governors (in reality the respective government) to duly consider the Petitions and take action on them expeditiously. Keeping such Petitions pending for an inordinately long period, the government seems to be totally ignorant of its obligations in law and of the human aspect of the suffering of persons on death row. It treats them as if they are standing in a queue for rations.

After careful sifting, the Supreme Court shifted its earlier stand in 1983 in the Sher Singh case and in categorical and unequivocal terms fixed a sort of deadline of 3 months on respective governments for disposal of Petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code.

Afzal Guru, convicted for his role in the 2001 terrorist attack on Parliament, had been on death row after his appeal was dismissed by the Supreme Court on August 5, 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. Afzal Guru suffered in solitary isolation, not knowing whether he would be executed or not. The agony of his family must not be any less. On 3rd February 2013, his Mercy plea was rejected by the President of India, Pranab Mukherjee and he was secretly hanged at Delhi’s Tihar Jail on 9th February 2013 and afterward buried inside jail grounds in Operation Three Star.

Yakub Memon convicted and awarded death sentence for conspiracy through financing the Mumbai serial blasts in 1993 which left 257 dead and 713 people wounded had preferred and exhausted a long channel of various legal and constitutional remedies like Review Petition, Writ Petition before the Supreme Court, Mercy Plea before the President, Curative Petition before the Supreme Court, Mercy Plea before the Governor of Maharashtra, Mercy Plea before Maharashtra Chief Minister seeking stay on his execution stated for 30 July 2015 as the date for hanging, where ultimately he was hanged on the stipulated date after exhausting all these remedial measures.

Under a landmark ruling in January 2014, the Supreme Court has humanized the way the state deals with death row convicts whereby a convict cannot be executed for 14 days after the rejection of his Clemency plea as giving 14-day notice for execution “allows the prisoner to prepare himself mentally for execution, to make his peace with God, prepare his will and settle other earthly affairs. It allows the prisoner to have a last and final meeting with his family members. It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of the Mercy Petition in time.”

To conclude, pardoning power of executive is very significant as it corrects the errors of judiciary. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. Mercy Petition’s timely disposal may prove to be a boon and in the interest of society and the convict considering the period of imprisonment undergone, seriousness of the offence, age of the prisoner, the health of the prisoner, good prison record, remorse and atonement, deference to public opinion etc. Else, it is a bane.

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