What is a Mercy Petition?

A mercy petition is a formal plea made by an individual convicted of a crime, particularly those sentenced to death or long-term imprisonment, seeking clemency from the President or Governor. This mechanism provides a last resort for convicts to appeal for leniency based on humanitarian and legal considerations. The concept of mercy petition exists in several countries, including the United States, the United Kingdom, Canada, and India.

The right to life is a fundamental right guaranteed under Article 21 of the Indian Constitution. Mercy petitions serve as an essential safeguard to ensure that judicial errors, potential biases, and cases of extreme hardship can be rectified, thereby preventing irreversible miscarriages of justice.

Philosophy Behind Mercy Petitions

The foundation of mercy petitions is based on the acknowledgement that no judicial system is infallible. Courts may, at times, pass judgements that could lead to wrongful convictions or disproportionately harsh sentences. The key philosophies underlying mercy petitions include:

1. Rectification of Judicial Errors: The judicial system, despite being robust, is prone to human errors. Mercy petitions provide an opportunity to correct these errors and prevent unnecessary suffering. A notable example of wrongful capital punishment was highlighted in 2012 when 14 judges from the Supreme Court and High Courts wrote to the President of India about 15 individuals wrongly sentenced to death in the 1990s, two of whom were executed.
2. Maintaining Public Trust: The criminal justice system derives legitimacy from public confidence. By incorporating a mechanism for mercy petitions, the system reassures the public that fairness and justice prevail over procedural rigidity.
3. Humanitarian Considerations: Mercy petitions take into account factors such as the health of the convict, mental fitness, socio-economic background, and family dependency, ensuring that justice is not just legal but also compassionate.

Constitutional Framework for Mercy Petitions in India

The Indian Constitution provides explicit provisions for mercy petitions under Articles 72 and 161, which empower the President and Governors to grant clemency.

Article 72 – Pardoning Power of the President

Under Article 72, the President of India has the authority to grant pardons, reprieves, respites, or remissions of punishment and to suspend, remit, or commute sentences in cases where:

• The punishment is imposed by a Court Martial.
• The sentence is for an offence under laws where the Union Government has executive power.
• The sentence awarded is the death penalty.

Article 161 – Pardoning Power of the Governor

Article 161 vests similar powers in the Governor of a State, who can grant pardons, reprieves, respites, or remissions of punishment and commute sentences of any person convicted of an offence against a law where the executive power of the State extends.

A landmark judgement in 2021 by the Supreme Court clarified that Governors have the power to pardon prisoners, including those sentenced to death, even before they have served a minimum of 14 years of imprisonment.

Process of Filing a Mercy Petition

Although there is no explicit statutory procedure governing mercy petitions, the process followed in practice is:

1. Filing of the Petition: After exhausting all legal remedies (trial court, High Court, Supreme Court review, and curative petitions), a convict or their family members can submit a written mercy petition to the President or the Governor.
2. Presidential Secretariat Review: The petition is received by the President’s Secretariat, which then forwards it to the Ministry of Home Affairs (MHA).
3. Ministry of Home Affairs Recommendation: The MHA examines the petition, seeks input from relevant authorities (such as the state government and law enforcement agencies), and makes recommendations.
4. Final Decision: The President or Governor, after considering the MHA’s recommendations, makes the final decision, which is binding.

Grounds for Filing a Mercy Petition

Mercy petitions are considered based on multiple grounds, including:

1. Judicial Errors: Cases where a wrongful conviction or excessive punishment has been identified.
2. Health Conditions: Severe physical or mental illnesses of the convict.
3. Socio-economic Background: If the convict is the sole earning member of the family.
4. Undue Delay: Prolonged time in deciding a mercy petition, which can amount to inhumane punishment.
5. Mitigating Circumstances: Personal circumstances, such as age, behavior in prison, and the possibility of rehabilitation.

Judicial Review of Mercy Petitions

The judicial review of the clemency power is limited but possible under certain conditions. The Supreme Court (SC) has ruled in various cases that the exercise of clemency powers is subject to judicial scrutiny if:

• The President or Governor did not apply their mind while deciding the petition.
• The decision was taken with malafide intent.
• Relevant materials were ignored while deciding the petition.

Important Supreme Court Judgements on Mercy Petitions

Several landmark judgements have shaped the legal landscape of mercy petitions in India:

1. Bachan Singh v. State of Punjab (1980): The SC upheld the constitutionality of the death penalty but emphasised that it should be awarded only in the “rarest of rare” cases.
2. Maru Ram v. Union of India (1981): The SC ruled that the President must exercise pardoning power based on the advice of the Council of Ministers.
3. Kehar Singh v. Union of India (1989): The SC examined the President’s pardoning power under Article 72 and clarified that a convict does not have the right to an oral hearing in a mercy petition.
4. Shatrugan Chauhan v. State of U.P. (2014): The SC held that undue delays in deciding mercy petitions could be grounds for commuting a death sentence to life imprisonment.

Recommendations by the Law Commission

The 262nd Law Commission Report (2015) recommended the abolition of the death penalty for all crimes except terrorism-related offences and waging war against the State. The report argued that:

• Capital punishment is not an effective deterrent.
• The criminal justice system is vulnerable to errors.
• Execution of innocent persons is an irreversible miscarriage of justice.

Supreme Court Guidelines on Mercy Petitions in State of Maharashtra v. Pradeep Yashwant Kokade & Anr.

The Supreme Court of India, in the case of State of Maharashtra v. Pradeep Yashwant Kokade & Anr., laid down comprehensive guidelines to ensure a structured and transparent process in handling mercy petitions. These guidelines aim to streamline the process at the state and central levels, ensuring accountability and adherence to the principles of justice and fair procedure.

The Court emphasised the importance of a dedicated mechanism within the State Governments and Union Territories for handling mercy petitions efficiently. It also provided specific directions to the Sessions Court regarding cases involving death penalty confirmation. This article provides an in-depth analysis of the Supreme Court’s guidelines and their implications.

Creation of a Dedicated Cell for Mercy Petitions

The Supreme Court directed all State Governments and Union Territories to set up a dedicated cell for processing mercy petitions. The key directives regarding this cell include:

1. Constitution of the Dedicated Cell: A dedicated cell must be established within the Home Department or Prison Department of each State Government and Union Territory. This cell will be responsible for handling mercy petitions and ensuring their prompt processing. The officer-in-charge of the cell will receive, issue, and process communications related to mercy petitions.
2. Attachment of Legal Officials: An official from the Law and Judiciary or Justice Department must be assigned to the dedicated cell to assist in legal and procedural matters.
3. Information to Prisons: All prisons across the state must be informed about:
   • The designation, address, and email ID of the officer-in-charge of the dedicated cell.
   • The procedure for forwarding mercy petitions and relevant documents.

Procedure for Forwarding Mercy Petitions

When a mercy petition is filed, the Superintendent of Prison or officer-in-charge must ensure that the petition, along with the following essential details, is forwarded to the dedicated cell:

A. Information from the Police Station

1. Criminal antecedents of the convict.
2. Details of family members of the convict.
3. Economic condition of the convict and their family.
4. Date of arrest and the period spent as an undertrial.
5. Date of charge sheet filing and a copy of the committal order, if any.

B. Documents from Jail Authorities

The jail authorities must forward the following documents to the dedicated cell and the Secretary of the Home Department:

1. Information from the concerned police station, translated into English.
2. Copy of the First Information Report (FIR) and its English translation.
3. Date of arrest, filing of charge sheet, and total incarceration period.
4. Copy of the committal order, if available.
5. Copy of the charge sheet with an English translation.
6. Report on the conduct of the convict in prison.
7. Copies of evidence, exhibited documents, and statements under Section 313 of CrPC (translated if necessary).
8. Copies of judgements from the Sessions Court, High Court, and Supreme Court, with translations if they were delivered in a vernacular language.

Forwarding Mercy Petitions to Authorities

Once the dedicated cell receives the mercy petition and supporting documents, it must ensure that copies of the petition are promptly sent to:

• The Secretariat of the Governor, if the petition is addressed to the Governor.
• The Secretariat of the President of India, if the petition is meant for the President.

The Secretariat must begin the processing of the mercy petition without undue delay.

Mode of Communication

• All correspondence should preferably be conducted through email, except in cases where confidentiality is involved.
• The State Government must issue executive orders detailing these guidelines to ensure compliance.

Guidelines for the Sessions Court Regarding Death Sentence Cases

The Supreme Court also laid down specific guidelines for the Sessions Court when dealing with cases where the High Court confirms or imposes the death penalty.

A. Notification of State Public Prosecutor

1. When the High Court confirms a death sentence, the Sessions Court must immediately take note of the confirmation.
2. The disposed case should be added to the court’s cause list as a Miscellaneous Application.
3. The Sessions Court must issue a formal notice to the State Public Prosecutor or investigating agency, asking them to provide:
   • Whether an appeal has been filed against the death sentence.
   • The current status of the appeal or petition.

B. Ensuring Swift Issuance of Execution Warrant

If the State Public Prosecutor informs the Sessions Court that an appeal is still pending, the following steps must be taken:

1. The disposed case should be listed on the cause list every month.
2. The Sessions Court must issue notices to the State Public Prosecutor to check the status of:
   • Any review petitions pending before the Supreme Court.
   • Any curative petitions.
   • Any mercy petitions filed with the Governor or the President.
3. If any of these petitions are pending, the Sessions Court must continue to track their status.
4. The objective of this tracking process is to:
   • Stay informed about the legal developments in the case.
   • Be prepared to issue an execution warrant as soon as all legal proceedings are concluded.

Notice to the Convict Before Issuing an Execution Warrant

Before issuing an execution warrant, the Sessions Court must:

1. Issue a formal notice to the convict.
2. Follow the guidelines laid down by the Allahabad High Court in People’s Union for Democratic Rights (PUDR) case.
3. Ensure that the convict has sufficient legal representation and assistance.

A. Providing Copies of Execution Orders

When the death warrant is issued, the prison authorities must:

• Provide the convict with a copy of the execution order and warrant.
• Clearly explain the implications of the warrant.

B. Access to Legal Assistance

If the convict wishes to challenge the execution warrant, the prison authorities must:

• Immediately arrange for free legal aid.
• Assist in securing legal representation for the convict.

Mandatory 15-Day Waiting Period Before Execution

There must be a minimum waiting period of 15 days between:

• The date on which the convict is informed about the execution order.
• The actual execution date.

This period ensures that the convict has a fair opportunity to file for a review, curative petition, or clemency appeal.

Responsibility of the State Government

The State Government or Union Territory Administration must apply to the Sessions Court for the issuance of an execution warrant immediately after the death penalty attains finality.

This ensures that delays in carrying out sentences do not occur due to administrative negligence.

International Perspective on Mercy Petitions

Many countries have provisions for mercy petitions and pardons:

• United States: The President has the power to grant clemency, including full pardons, commutations, and reprieves.
• United Kingdom: The Royal Prerogative of Mercy allows the monarch to grant pardons on the advice of the government.
• Canada: The Governor General can grant clemency through the Royal Prerogative of Mercy.
• India: The President and Governors have clemency powers under Articles 72 and 161.

Conclusion

The mercy petition serves as an essential constitutional safeguard that allows for justice beyond the rigidity of law. While it is a discretionary power, it must be exercised with caution, fairness, and humanitarian considerations. Given the irreversible nature of capital punishment, mercy petitions provide a crucial opportunity to correct judicial errors and uphold the fundamental right to life.

The evolving jurisprudence on clemency, combined with international trends and human rights considerations, calls for a re-examination of the death penalty and its application in India. The judiciary, executive, and legislature must work together to ensure that the mercy petition process is transparent, fair, and in line with constitutional morality and human dignity.