The Tihar Jail administration recently made headlines when it asked the convicts in the notable 2012 Nirbhaya case to submit a mercy petition to the President within seven days. This development came after all other legal avenues for these convicts had been exhausted. Even though only one convict applies for a mercy plea, this plea applies to them all.
Mercy Petitions – A Legal Lifeline
A mercy petition can be sought once the death sentence by a sessions (trial) court is confirmed by the High Court, and if the Supreme Court either refuses to hear an appeal or upholds the death sentence originally given, the convicts or their relatives have the option to submit a mercy petition to the President of India (as per Article 72) or the Governor of the State (as per Article 161).
In the mercy petition, the person seeking mercy is required to state the grounds on which he is requesting pardon. These grounds may not have any legal merit for exonerating him from the offence but can play a crucial role in the President’s decision to release him. Grounds such as being the sole earner in the family, physical fitness, age, or if the law was harsh are taken into consideration at the time of disposing of the mercy petition.
Supreme Court’s Stand on Mercy Petitions
During the Kehar Singh v Union of India, 1988 case, the Supreme Court reasserted its stand that the granting of a pardon by the President is an act of grace and cannot be claimed as a right.
The Philosophy Behind Pardoning Power
Every civilized country recognizes and provides for pardoning power as an act of grace and humanity within the course of law. The pardoning power is founded on public welfare, the ultimate objective of all punishments.
Nature of Pardoning Power and its Constitutional Provision
Article 72 gives the President of India pardoning powers. It states that the President has the power to grant pardons, reprieves, respites, or remissions of punishment, or suspend, remit or commute the sentence of any person convicted of any offence.
| Type of Pardon | Definition |
|---|---|
| Pardon | The president can absolve/acquit the person for the offence. |
| Commute | To reduce the type of punishment into a less harsh one. |
| Remission | To reduce the punishment without changing its nature. |
| Reprieve | A delay allowed in executing a sentence, typically a death sentence. |
| Respite | Reducing the degree of punishment based on specific grounds like pregnancy or old age. |
Difference between the Pardoning Powers of the President and the Governor
There are significant differences between the pardoning powers of the President and the Governor. The President can pardon a death sentence but the Governor lacks this power. Additionally, while the President can pardon in case of Court-martial, the Governor cannot. Furthermore, the President exercises his judicial powers for the punishment which is given under the law made by the Union, whereas the Governor exercises his powers for the punishment under the law made by the State.
Procedure Involved in Mercy Petitions
A convict sentenced to death can file a mercy petition within seven days from when they are informed about the dismissal of their appeal or special leave to appeal by the Supreme Court. The petitions are then presented to the President, whose office seeks cabinet advice. This is examined by the Ministry of Home Affairs and the Ministry before giving recommendations to the President.
Judicial Review and The Concept of Curative Petitions
President’s pardon/rejection/delay for mercy petitions can face judicial review. However, if a court finds the process behind the President’s decision as per Article 72 was not unfair or unreasonable, then it cannot be interfered with. A curative petition is the last judicial corrective measure pleaded in any judgement or decision by the Supreme Court, typically decided by Judges in-chamber.
Finally, under Article 137, the Supreme Court has the power to review any judgement. This curative petition needs to be filed within 30 days from the judgement or order’s date.
