Exercising mercy as a Constitutional duty: Pardon for death sentence: What is the law? - Hindustan Times
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Exercising mercy as a Constitutional duty: Pardon for death sentence: What is the law?

Jun 18, 2024 08:06 PM IST

What does the law say about Presidential power to decide mercy pleas? How has this constitutional power developed over the years?

After a person is convicted of an offence, and the court holding it to be the rarest of the rare cases, passes a death sentence, justice does not rest. Justice is not merely in the passing of an adequate sentence but encompasses due process, which includes the convict’s right to appeal the sentence within the given legal framework – confirmation, appeals, special leaves, review and curative petitions and mercy pleas.

While the act of pardon may initially appear as a personal gesture of mercy, its placement within the constitutional framework demands some form of oversight (Representative Photo) PREMIUM
While the act of pardon may initially appear as a personal gesture of mercy, its placement within the constitutional framework demands some form of oversight (Representative Photo)

As the last step in the criminal justice process, clemency powers to the Governor (Article 161) and the President (Article 72), especially for reviewing sentences of death-row convicts, holds relevance. This allows the President or the Governor, as the case may be, to re-examine the case's evidence and merits, and beyond, to determine not only the determination of guilt based on the facts of the case but also keeping in mind the possibility of rehabilitation, public welfare and need for compassion.

This executive action is independent of the court's judgment and does not override it, even though the result is in fact, a reduced sentence.

In deciding mercy pleas, the formal involvement of the President is largely symbolic, with the actual decision-making authority resting with the state executive (Article 74). Former President Pranab Mukherjee, who dismissed an unprecedented number of mercy pleas during his tenure, reinforces the menial role of Presidents in this exercise by stating: “I believe that if the government of the day recommends that a mercy plea should be rejected, then I as President must not stand in the way”

This ceremonial role aligns with the broader functional euphemism established in the Constitution, where the office of the President is said to reign, but in practice, the executive rules.

With the dominance of the cabinet, this power in practice opens the door for politically motivated executive actions. Like in Kehar Singh’s case, the fate of the assassins of former Prime Minister Indira Gandhi hung on the decision of a cabinet dominated by her own political party, bound to be guided by biases and a lack of impartiality in the exercise of executive clemency.

The provision stands on the boundary of judicial review, where the judiciary cannot scrutinise the merits of the decision for correctness but look into considerations of relevance, irrationality, arbitrariness, mala fides, or procedural lapses.

For example, in Praveen Kumar's writ (2013), the Supreme Court had quashed the rejection of the mercy plea, as the central government and the president without reading or obtaining the record of the trial court, thereby concluding that there was no information, let alone emphasis, on the mitigating circumstances in adjudicating mercy pleas.

Setting context to Article 72

While the act of pardon may initially appear as a personal gesture of mercy, its placement within the constitutional framework demands some form of oversight. The SC has held that there cannot be ‘madness’ in the exercise of a constitutional provision; for instance, released by chief ministers on his birthday or because of the birth of a son or considering it to be an auspicious omen can vitiate the exercise.

However, in Kehar Singh (1989), has also refused to issue specific guidelines for directing the discretion involved in clemency decisions stating that historical context and the constitutional text itself as sufficient guidance or indicators for exercising this power.

Therefore, understanding the historical evolution of Article 72 is crucial, alongside interpreting constitutional provisions and judicial precedents.

A history of granting pardons

The practice of granting pardons dates back to ancient Rome, around 403 B.C., where individuals could be pardoned if their appeals were supported by at least 6,000 citizens through a secret ballot. The current constitutional framework for pardons, as outlined in Article 72, is derived from British mercy jurisprudence. Historically, in Britain, the power of mercy was a personal prerogative of the Crown, exercised by the monarch (similar to today's president) based on advice from the Secretary of State for the Home Department (equivalent to the cabinet).

In modern criminology, the practice of granting pardons serves two important purposes.

First, it helps correct failures in the justice system, checking if there are doubts about innocence, questions about the proportionality of the sentence to the crime, or questions about culpability. It acknowledges the fallibility of human judgement, and acts as a check for factors that criminal processes are unable or unwilling to consider.

Secondly, granting pardons promotes public welfare and compassion, facilitating the rehabilitation and reconciliation of the offender, victim, and community. This objective remains relevant regardless of whether the pardon aligns entirely with the severity of the original offence. Therefore, while courts uphold the principles of justice, the executive fulfils an equally crucial role in embodying "an attitude of a healthy society—mercy that extends beyond the strict confines of the law," as emphasised by the Governor of North Carolina (1966).

The judiciary's imposition of the death penalty hinges on a structured evaluation of mitigating and aggravating factors, prioritising justice; the presidential reconsideration extends the purview of justice beyond mere culpability. It necessitates a broader assessment, including the accused's post-conviction achievements, aimed at rehabilitation and public welfare

In conclusion

While rejecting Arif's review petition, the Supreme Court emphasised that national integrity and sovereignty are among the most serious factors justifying the imposition of the death penalty. However, without recorded reasons or publicly accessible orders detailing the rejection of the mercy plea, we have a limited understanding of the specific factors involved in this decision and whether they align with or go beyond the constitutional framework.

Given the exercise of clemency power granted under the constitutional scheme, it is important to have close oversight of its exercise. The Law Commission through its 262nd Report has highlighted that these powers have failed in acting as the final safeguard against miscarriage of justice.

Like, in an earlier, 1980 case, of Jeeta, Harbans, and Kashmira Singh, despite their identical involvement in the crime, Jeeta was executed after her special leave was dismissed by one bench and her mercy petition was rejected while Kashmira Singh's sentence was commuted to life imprisonment by another bench. Harbans Singh, leveraging Kashmira's commutation, successfully challenged the rejection of his mercy plea, while Jeeta could not. In the new criminal law, Bhartiya Nyay Suraksha Sanhits (BNSS), a wider aspect of mercy plea adjudication is kept outside of the purview of judicial review.

Section 437(7) states, "[...] any question as to the arriving of the decision of the President shall not be enquired into any Court," broadly eliminating judicial oversight and contravening established precedents that allowed limited review.

Additionally, the new law restricts third parties from filing mercy pleas, limits the number of petitions, disregards supervening circumstances, and imposes rigid timelines that may harm death-row convicts, often from marginalized backgrounds. This attempt to 'decolonise' criminal laws undermines modern safeguards, ignoring historical challenges in mercy plea adjudications and further restricting the scope of relief at this critical stage. If clemency is to be reimagined in modern penology and criminology, it must no longer be viewed as an individual act of mercy, as if the State possessed divine powers, which was the origin of clemency. Instead, it should be seen as a constitutional exercise of power towards the modern ends of penology. With the BNSS, in force from July 1, the judiciary is tasked with the job of even more delicately overseeing this exercise without delving into the merits of each decision, focusing on identifying biases and extraneous motivations.

In a framework where the irreversible act of the death penalty hangs in a delicate balance, the pardon provisions must be seen as the final chance to intervene against the permanent deprivation of life and thus must be fiercely protected to advance the redemptive goals of the criminal justice system.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy. The views expressed are personal.

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