In News:

• The Supreme Court ordered the Central government to decide on the mercy petition of Balwant Singh Rajoana, sentenced to death for the assassination of Punjab Chief Minister Beant Singh, preferably within two months.
  
  

What’s in today’s article:

• About Mercy Petition (Meaning, Process, Judicial Review, Important Judgements, etc.)
  
  
• Pardoning power of the President
  
  

About Mercy Petition:

• As per the Constitutional framework in India, mercy petition to the President is the last constitutional resort a convict can take when he is sentenced by the court of law.
  
  
• A convict can present a mercy petition to the President of India under Article 72 of the Constitution of India.
  
  
• Similarly, the power to grant pardon is conferred upon the Governors of States under Article 161 of the Constitution of India.
  • Previously, the governor cannot pardon the death sentence, which only the Indian President can do. But recently on 3rd August 2021, the Supreme Court held that the Governor of a State can pardon prisoners, including death row ones, even before they have served a minimum of 14 years of a prison sentence.
    
    
  • The recent judgement regarding the Governor’s power to pardon overrides a provision in the Code of Criminal Procedure (Section 433A) which mandates that a prisoner’s sentence can be remitted only after 14 years of jail.
    
    
  
  
  

Process of Making a Mercy Petition:

• There is no statutory written procedure for dealing with mercy petitions, but in practice, after extinguishing all the reliefs in the court of law, either the convict in person or his relative on his behalf may submit a written petition to the President.
  
  
• The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.
  
  
• The Home Ministry in consultation with the concerned State Government discusses the merits of the petition.
  
  
• After the consultation, recommendations are made by the Union Home Minister and then, the petition is sent back to the President for his decision.
  
  

Is the President’s Power Discretionary?

• Even though the President and Governor are the executive heads, but they cannot exercise their discretion with regard to their powers under Articles 72 and 161.
  
  
• Both the executive heads are required to act on the advice of the appropriate government–Central and State Government.
  
  
• The advice of the appropriate Government binds the Head of the state.
  
  

Is there a time Limit within which the President has to respond?

• The President can either accept or reject the mercy plea as per the advice by the council of ministers.
  
  
• However, the Constitution doesn’t provide for a specified time limit to accept/reject the mercy petition.
  
  
• He can keep the petition in abeyance for an indefinite period if he wishes to.
  
  

Judicial Review:

• In a landmark case of Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006) the Supreme Court held that the clemency power of the President and Governor under Article 72 and Article 161 is subject to judicial review.
  
  
• The Supreme Court laid down certain grounds on which clemency power can be claimed by the petitioner for judicial review:
  • If the order is passed without any application of mind.
    
    
  • If the order passed is malafide.
    
    
  • If the order passed on completely irrelevant considerations.
    
    
  • If the order suffers from arbitrariness.
    
    
  
  
  

Important Judgements on Mercy Petition:

• In Maru Ram v. Union of India (1981) the constitutional bench of the Supreme Court held that the power to grant pardon under Article 72 is to be exercised on the advice of the Council of ministers.
  
  
• The Supreme Court in Dhananjoy Chatterjee State of West Bengal (1994) case reiterated its earlier decision in Maru Ram and said that the power under Article 72 and Article 161 can be exercised by the Central and State Governments, not by President and Governor on their own.
  
  
• In the case of Kehar Singh v. Union of India (1989) a five-judge bench of the Supreme Court had examined the scope of the President’s pardoning power under Article 72 in detail.
  • The Supreme Court took a liberal view and held that the President, in the exercise of the pardoning power vested in him under Article 72, could “scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court in regard to guilt of and sentence imposed on the accused.”
    
    
  
  
  

Pardoning Power of the President:

• Under Article 72 of the Constitution, the pardoning power of the President includes the following:
  • Pardon:
    • It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
      
      
    
    
    
  • Commutation:
    • It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
      
      
    
    
    
  • Remission:
    • It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
      
      
    
    
    
  • Respite:
    • It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
      
      
    
    
    
  • Reprieve:
    • It implies a stay of the execution of a sentence (especially that of death) for a temporary period.
      
      
    • Its purpose is to enable the convict to have time to seek pardon or commutation from the President.