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INTERNATIONAL JOURNAL OF LAW

MANAGEMENT & HUMANITIES
[ISSN 2581-5369]
Volume 5 | Issue 3
2022
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137 International Journal of Law Management & Humanities [Vol. 5 Iss 3; 137]

Mercy, Fairness and Death Penalty in India:

A Critical Study
ISHIKA AGARWAL1 AND MONIKA PRIYA2

ABSTRACT
“The true measure of our character is how we treat the poor, the disfavored, the
accused, the incarcerated, and the condemned.”
- Bryan Stevenson
Mercy petition is one of the most debated and stressed topics in the sphere of law and
justice at national and international levels. The discussion on mercy petition and death
penalty is never ending, be it the House of Commons or United Nation Human Rights
Commission. At this time most of the countries have already abolished the death
penalty or are under a moratorium but India is still on the verge of seeking reform on
Mercy petition as well as capital punishment. Mercy Petition and death penalty are
interrelated because it is only when a convict is being sentenced with death penalty the
need for knocking the door of president arises. Even after so many years of
independence there is still impediment in the “proper application of mercy petition and
death penalty” in India.
The long delay and inefficiency in dealing with a mercy petition is the most lamenting
part of the executive. The debilitating effects of this complex phenomenon imposed
upon the prisoners that can be only called a living death are far beyond the maximum
suffering permitted by Article 21.3 As per a report4, there are 142 which have abolished
the death penalty. Still, India is defending the retributive theory and forgetting the
words of Gandhi, "an eye for an eye makes world blind". Under the Indian Constitution
clemency powers are given to the President of India and Governor of the States by the
virtue of Article 72 and 161 respectively. The said articles authorize the executive to
grant Pardon, commute, suspend, reprieve, respite and to remit the capital punishment
even if sentenced by the highest court of the land. The mercy can be granted by the
President on any redeeming fact of the case, trial or other factors. Yet the numbers
show that the outcomes of mercy petition depend less on the crime or the criminal but
on the fact that who occupies the Rashtrapati Bhavan.3

1
Author is a student at School of Law, Manipal University Jaipur, India.
2
Author is a student at School of Law, Manipal University Jaipur, India.
3
The Law Commission of India, Two Hundred and Sixty Two report on “Death Penalty”
Amnesty International‟ available at https://www.amnesty.org/download/document/act5066652017.english.pdf

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Under the provisions of the Constitution President and Governor can reduce the
sentence of the prisoner or can grant pardon altogether. In cases of death penalty the
President can commute it to life imprisonment but his decision is based on the
recommendation of the home minister. President can ask the minister to reconsider but
if the minister insists on the death penalty then the option available is either to comply
or to exercise pocket veto, leaving the decision pending for their successor.5 The pocket
veto is the only way for a president to express disagreement with the Home Ministry‟s
recommendation.
In India the death row prisons have to face long delays in trial, appeals and thereafter
in executive clemency because of which they suffer from extreme agony, anxiety and
debilitating fear arising out of an imminent yet uncertain execution.”6
This paper focuses on clemency power of the executive and how they decide mercy
petitions. Also this paper will try to highlight the problems and irregularities that take
place while deciding mercy petition and how that leads to grave violation of human
rights. Also, with the help of cases and data this paper emphasizes on the need to
improve the existing system.

I. THE CONCEPT OF MERCY

(A) Object of Clemency Power

Mercy is an ancient concept that has a long and venerable tradition in religion, philosophy,
literature, and the criminal law. The tradition of mercy was implemented in North America
through the pardon authority of the colonial governors, and, later, the discretion of juries to
recommend mercy.7

Mercy has often been seen as either subordinate to justice filling in the gaps left by particular
instantiations of due process or as superior and external to the justice yielded by due process.
Mercy has the element of discretion of the decision-makers and it has been eroded by the
politics and an increasingly bureaucratized capital punishment system. Mercy's demise can be
seen particularly in the actions of governors and juries, who have been discouraged from
exercising merciful discretion. Yet a host of constitutional, legal, and public policy factors, as
well as humane intuitions, argue that mercy must play a central role in any capital punishment

5
The Law Commission of India, Two Hundred and Sixty Two report on „Death Penalty‟
6
Ibid.
7
Paul Whitlock Cobb, “Reviving Mercy in the Structure of Capital Punishment”, The Yale Law Journal, Vol. 99,
No.2, Nov, 1989, pp. 389-409

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scheme.8 Once an offender has exhausted all his/her judicial appeals the only option left is to
turn towards executive clemency. If a person is granted mercy his or her death sentence reduces
to life imprisonment. If few cases grant of clemency is purely “an act of grace” by the executive.
And there have been instances where clemency has prevented grave miscarriage of justice.
Despite its prominence, clemency powers are discretionary and not subject to any restraints.8

The philosophy underlying the pardon power is that that “every civilized country recognizes
and has, therefore provided for the pardoning power to be exercised as an act of grace and
humanity in proper cases, without such a power of clemency to be exercised by some
department or functionary of government, a country would be most imperfect and deficient in
its political morality and in that attribute of deity whose judgments are always tampered with
mercy.”9 Pardon may help save an innocent person in cases where there have been miscarriage
of justice or the conviction is doubtful. The underlying principle is that it is always preferable
to grant liberty to an offender than to punish an innocent person. The purpose of pardoning
power is to correct the judicial error that may result into grave miscarriage of justice as no
human system of judicial administration can be free from imperfection.

(B) Mercy Petition in India

In India once the offender has exhausted appeal process and higher courts have confirmed the
death sentence, a mercy petition can be file before the state or the national executive.

According to the Indian Constitution, the President of India9 and the State Governor10 have the
power to suspend, pardon, or commute death sentences.12 With the advice of their cabinets
these constitutional functionaries can pardon those on death row. In addition, the executive can
commute the death sentence of an offender to any other punishment provided by the Penal
Code without the consent of the offender.13 Further, the Constitution states that the Governor
can confer authority over capital cases to the relevant District or Regional Council.11

The power to pardon provided under the constitution act as an act of humanity towards the
convict who has been given death sentence. It is not necessary for the executive to review the
petition of mercy from a legal angle or from the perspective of a legal expert who opinion is
solely based on the available evidences and testimony of witnesses. Thus, the law clearly
provides that the death penalty must stand the constitutional mandate.

8
Ibid. 8Joshua D. Freilichtt and Craig J. Rivera, “Mercy, Death and Politics: An Analysis of Executions and
Commutations in New York State”, American Journal of Criminal Justice, Vol. 24, No.1, September 1999, pp 15
9
The Constitution of India, 1950, Art. 72
10
The Constitution of India, Art.
11
The Constitution of India, 1950, Sixth Schedule

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When the Supreme Court has finally affirmed the death sentence, a convict on the death row
can approach the president directly, via prison officials, via the Union Home Ministry or via
the governor of the state where he/she is incarcerated.

The President while deciding the mercy petition seeks the opinion of the Union Cabinet, which
is provided by the Ministry of home affairs. In some cases President may find it appropriate to
send the recommendations of the Ministry back for further reconsideration. Once Ministry of
Home Affairs has submitted its recommendations, the President will act accordingly. However,
there is no time frame given to decide mercy petition.

In Maru Ram v. Union of India12 a Constitution Bench of the court held that the power under
article 72 is to be exercised on the advice of the central government and not by the President
on his own, and that the advice of the government binds the head of the state. Article 72 only
comes into play after the conviction and death penalty is confirmed by the Supreme Court,
showing that grounds for mercy are distinct from substantive legal or procedural grounds.
Indeed, the justification for mercy has its roots not in merit, but in need. All of us – the best
and the worst – are in need of mercy, and it is only by showing mercy that morally, we ourselves
become entitled to receiving it.13

It has been observed by the Supreme Court in cases that the undue delay in granting pardon to
a convict on death row is grave violation of human rights of the convict. For example, in
Shatrughan Chauhan v. Union of India17, the Indian Supreme Court held that the executive is
required to consider mercy petitions within a reasonable time period. The Court held that
inordinate, undue, and unreasonable delay in çonsidering mercy petitions constitutes torture
and amounts to violation of Indian and international law. It also issued certain guidelines when
considering mercy petitions. The Court stated that prisoners have a right to legal aid to prepare
legal challenges to the clemency process and to be informed of the result of their mercy petition
in writing. In addition, it stated that prison officials should ensure that prisoners receive regular
mental health evaluations and be given "appropriate medical care".18

II. DEATH PENALTY IN CRIMINAL JUSTICE SYSTEM

(A) International Scenario

Death penalty is one of the most controversial and debatable issues in criminal justice system

12
(1981) 1 SCC 107
13
Shubhangi Agarwalla, “The Role of mercy”, The London School of Economics and Political Science, available
at https://blogs.lse.ac.uk/southasia/2018/08/13/the-role-of-mercy-in-india/ (Last accesed on sept. 5, 2019) 17
(2014) 3 SCC 1 18 Ibid.

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around the world. Since World War II, efforts have been made for abolishing the death penalty.
Article 6 of International Covenant on Civil and Political Rights (ICCPR), 1966 mentions
various restriction in awarding death penalty, whereas the second Optional Protocol, 1989 to
the ICCPR, 1966 directs the States to abolish death penalty. The United Nations Human Rights
Council (UNHRC) has been trying to resolve this issue for the past decades.14

In June 2014, the UN general assembly adopted a Resolution15 discussing the Report of UN
Secretary General where the report confirms that the trend towards the universal abolition of
the death penalty is continuing. The Report of UN Secretary General has shown that most of
death penalty retentionist Countries have introduced temporary moratorium (suspension on the
application of the death penalty and expressly called for the imposition of prison terms instead
of the death penalty.16 India has not ratified the OP II, 1989.

Despite being party to the International Covenant on Civil and Political Rights (ICCPR) that
requires a progression towards abolition of death penalty, India appears to be heading the other
way.17 Death sentence has been abolished in 142 countries in law or practice across the world
while 56 have retained it, according to this March 2018 report by Amnesty International, a
global human rights advocacy.23

Article 51(c) of the Indian Constitution clearly provides that India should strive to respect
international law and treaty obligations.18 Therefore India should comply with international
obligation which includes customs, conventions and treaties including human rights treaties.
As India has ratified ICCPR, 1966 there it should adhere to restrictions provided under Article
6 of ICCPR, 1966 whenever India awards death penalty.

III. DEATH PENALTY AS DETERRENCE: A FLAWED CONCEPT

Jurists and intellectuals who are in favor of continuing death penalty argues that it has deterrent
effect and it prevents commission of serious offences in future. For example, Professor of
Jurisprudence and Public Policy, Fordham University opined that "execution of those who have
committed heinous murders may deter only one murder per year. If it does, it seems quite
warranted. It is also the only fitting retribution for murder I can think of. Most abolitionists

14
Avaible at http://ibsb.ro/qrtfiles/uploads/2015/06/Human-Rights-Study-Guide-2-Death-Penalty.pdf (Last
accessed on sept. 6, 2019)
15
UNGA, A/HRC/27/23, June 2014
16
Avaible at www.ohcr.org/EN/HRBodies/HRC/RegularSessions/Sess. (Last accessed on sept. 6, 2019)
17
S. Muralidhar, “Hang Them Now, Hang Them Not: India's Travails with the Death Penalty”, Journal of the
Indian Law Institute, Vol. 40, No. 1/4, December, 1998, pp. 143-
173
18
The Constitution of India, 1950, Art. 51(c)

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acknowledge that they would continue to favor abolition even if the death penalty were shown
to deter more murders than alternatives could deter. Abolitionists appear to value the life of a
convicted murderer or, at least, his non execution, more highly than they value the lives of the
innocent victims who might be spared by deterring prospective murderers.”19

However, those who are against the imposition of death penalty believe it is not a solution to
remove the wrong and does not have any deterrence effect and therefore it should be abolished.
Some criminologists opine that the death penalty has the opposite effect, i.e., society is
brutalized by the use of the death penalty, and this increases the likelihood of more heinous
crimes.20 Another argument in favour of abolition of death penalty is that it violates two basic
human rights that is right to life and right to be free from torture which are protected under
Universal Declaration of Human Rights, 1948 and International Convent for Civil and Political
Rights, 1966.

Various reports which shows years of data suggests that death penalty does not deter heinous
and violent crimes such as murder, rape, terrorism etc. Still courts sentence hundreds of people
to die and most of them stuck in a process paralyzed by delay. Most of them are poor and
cannot afford to defend themselves. All of this contradicts some of the most enduring and
accepted notions about capital punishment in India. The death penalty contradicts the enduring
and accepted notions of capital punishment because of the following reasons - (a) death penalty
is irreversible and could be, given the law, inflicted upon innocent persons; (b) there was no
convincing evidence that the death penalty purpose- its deterrence remained unproved,
retribution end of punishment and reformation of the criminal and primary purpose of
punishment; (c) execution by whatever means for whatever offence was grading punishment.21

There has been no substantial evidence or research that proves that death penalty deters violent
crimes such as murder. The United Nations has even referred to it as a “myth.” no correlation
between executions and homicide rates in the US. Sentencing is a discretionary power.22

(A) Argument against Death Penalty

The Supreme Court has repeatedly held that excessive delay in executing the death penalty,

19
Ernest van den Haag, “The Ultimate Punishment: A Defence 1986”, Harvard Law Review, Vol. 99, No. 7, May,
1986, pp. 1662-1669
20
“Arguments for and Against the Death Penalty” available http://www.bbc.co.uk/newsround/15007511(Last
accessed on sept. 7, 2019
21
S. Muralidhar, “Hang Them Now, Hang Them Not: India's Travails with the Death Penalty”, Journal of the
Indian Law Institute, Vol. 40, No. 1/4, December, 1998, pp. 143-173
22
Aparna Alluri, “Seven Myths about the Death Penalty, Debunked”, Hindustan Times, 17 June, 2016, available
at https://www.hindustantimes.com/static/deaths-door/death-penalty-seven-myths.html (Last accessed on Sept. 7,
2019)

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leaving the condemned prisoner to suffer a “dehumanizing effect” of “facing the agony of
alternating between hope and despair” renders the capital punishment too inhuman to be
inflicted, thus entitling the prisoner to the lesser sentence of a life term. It has been often argued
that the state does not have the right to execute a convict. “Execution kills the criminals and
not the crime… How can judiciary decide as to who should live and who should die”.23

It is not a merely theoretical possibility that there can be stances where an innocent person can
be hanged.In the United States, a report issued in 1993 by the subcommittee on Civil and
Constitutional Rights, Committee on the Judiciary of the US Congress, entitled 'Innocence and
the Death Penalty: Assessing the Danger of Mistaken Executions', noted that at least 48 people
have been released from prison after serving time on death row since 1973 with significant
evidence of their innocence. In 43 of these cases, the defendant was subsequently acquitted,
pardoned or charges were dropped. Some of these men were convicted on the basis of perjured
testimony or because the prosecutor improperly withheld exculpatory evidence.24

There can be a possibility where court can be wrong in awarding death penalty to a person. In
appeals made before Supreme Courts and High Courts a quarter of the convicts who were
sentenced death penalty by the Sessions court between 2000 and 2014 were acquitted. Some
of them had spent nearly a decade on death row.

Out of those who are sentenced death penalty, most of them are poor. As we know the system
is inclined towards those who are rich and/or educated. Most of them cannot afford lawyers to
defend themselves in the court of justice. Although, legal aid may be a solution but these
lawyers are underpaid and overworked. Also poor families cannot affords things which may
prove them innocent or mitigate the sentence such as expert witnesses, medical evidences or
any other evidence that weighs in favor of the accused. Also whether a prisoner should live or
die depends on judge decides their case. The data suggest that justice in death penalty cases is
neither exact nor consistent. It‟s arbitrary. This applies in other cases of the criminal justice
system too such as bail. But the stakes in capital cases are much higher. They are literally
matters of life and death.

(B) Death Penalty and Indian Judiciary

The constitutionality of death penalty has been challenges in many cases before the Indian

23
“Justice or Revenge? The death penalty has no place in a civilised society, but India seems to celebrate it”,
Economic and Political Weekly, Vol. 47, No. 47, December, 2012, p. 7
24
Roger Hood, The Death Penalty : A Worldwide Perspective 104

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Judiciary. In 1983, in Bachan Singh v. State of Punjab,25 the Supreme Court of India upheld
the constitutionality of the death penalty. However, the Supreme Court stated in its decision
that the death penalty should only be used in the "rarest of rare" cases. Again, to decide whether
a case falls under the category of rarest of rare case or not was completely left upon the court's
discretion. The Supreme Court laid down a few principles which were to be kept in mind while
deciding the question of sentence. One of the very important principles is regarding aggravating
and mitigating circumstances. It has been the view of the court that while deciding the question
of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case
has to be drawn. Full weightage should be given to the mitigating circumstances and if after
taking them into account the court feels that justice will not be done if any punishment less
than the death sentence is awarded, then and then only death sentence should be imposed.32

In Mithu v. State of Punjab,26 the Court determined that the mandatory death penalty under
Section 303 of IPC, 1860 is unconstitutional in India. Various statutes relating to drug and
atrocity offenses prescribe the mandatory death penalty, but the Supreme Court has not
expressly struck down the language in such statutes as unconstitutional, hence, Indian courts
do not seem to apply the mandatory death penalty for these crimes.
27
In 2011, in a landmark decision of Indian Harm Reduction Network v. Union of India,34 the
Bombay High Court ruled that the mandatory death penalty for drug offences was
"unconstitutional". Though the Court did not strike down Section 31-A of the Narcotic Drugs
and Psychotropic Substances Act of 1985, but stated that the courts were no longer obligated
to hand down the death penalty for repeat drug offenders under the Act.

In 2012, the Supreme Court ruled in State of Punjab v. Dalbir Singh28 that the mandatory death
penalty as punishment for crimes stipulated under article 27(3) of the Indian Arms Act of 1959
was unconstitutional in light of judicial review under the Constitution and the judgments in
Bachan Singh v. State of Punjab29 and Mithu v. State of Punjab30. Because the Court ruled
against the law, that particular article of the Arms Act is null and void. The courts can now
impose a lesser sentencing.31

25
(1983) 1 SCR 145 at para
224
26
(1983) 2 SCC 277
27
SCC Online Bom 715
28
(2012) 3 SCC 441
29
(1980) 2 SCC 684
30
(1983) 2 SCC 277
31
The Arms (Amendment) Bill, 2011

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Justice P.N. Bhagwati in his dissenting opinion found that the death penalty necessarily
arbitrary, discriminatory and capricious. He reasoned that "the death penalty in its actual
operation is discriminatory, for it strikes against the poor and deprived sections of the
community and the rich and affluent usually escape, from its clutches.32

In 1989, in Triveniben v. State of Gujarat,33 the moot questions were whether undue delay in
executing death penalty violates human rights of the convict? Whether such delay could be a
sole ground for commutation? Here the Court condemned undue delay in execution and
providing cruel and unusual punishment due to extended stays. The Court ruled that undue
delay in execution of a sentence of death could be ground for judicial commutation of the
condemned sentence; however, delay would only be a single factor, and not be the sole factor.
Further, death sentenced prisoners may technically have a right to contest their sentences if
they are not executed within 5 years of sentencing.34

IV. NEED FOR CHANGE IN THE SYSTEM

(A) Procedural irregularities

In India, the pardoning power vests with President under Article 72 however President does
not decide clemency cases on his own. His decision is based on the recommendation made by
the council of minister. In a country where the post of President is de jure and not de facto, the
interference of the legislature in while deciding clemency cases by the executive as per their
whims and fancies is very much implied.

But this is not the president's decision alone: the home minister‟s advice is binding. Other than
the pocket veto, the president has no option but to sign on the dotted line. In fact, when a new
home minister enters office, the president sends back every pending petition for a review. If
the home minister changes, the recommendation might change with him.Since the president
cannot be expected to read every document in the file, the notes from the MHA are crucial
pointers. In these notes, the MHA is expected to consider age, income, disabilities, motive,
insufficient evidence, disagreement among judges, delays, and so on.

Once a mercy petition is rejected by the President it is necessary that the convict or those who
petitioned on his/her behalf must be informed about the rejection. For example Maharastra
Prison Manual stipulates that once the State Government has fixed the date of execution, the

32
Bachan Singh v. State of Punjab, 1982 3 SCC 24 at para 81
33
(1989) 1 SCC 678
34
Navrikan Singh, “Lawyers for Human Rights International: India”, Interviewed by DPW, (India Doc. 1 24
February 2010.)

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date must be communicated to the prisoner and his relatives. It is well settled in law that the
President‟s decision is subject to judicial review and therefore the prisoner and those who
petitioned on his behalf have a right to challenge the rejection of the mercy petition. Apart from
this, a prisoner may also have various other grounds to challenge the government‟s decision to
execute the prisoner. The mere fact that a particular procedure has been stipulated in the rules
is not enough to justify it procedure has to pass the further test of being fair, just and reasonable.

The Government of India‟s apparent distrust of the law was shared by the Supreme Court in
many instances where it has admitted error in cases of convicted prisoners sentenced to death.
The Indian experience of the death penalty is replete with flawed forensics, police and
prosecutorial corruption, false witnesses, false confessions and miscarriages of justice. There
has also been „a pattern of confusion, contradiction and aberrations‟ in such cases. 35

In cases of mercy petition neither prisoners nor their lawyers can track the progress of the
appeal. Most of them are never given a copy of the document that says they have exhausted
their last appeal to live. Those who do get a copy can rarely read it also the rejection letters are
almost always in English.36

(B) Undue Delay in deciding mercy petition

Apart from the humanitarian argument, latest data also indicate that in India trial delays make
the death sentence ineffective and result in protracted waits for the accused and their families.
“Death row prisoners continue to face long delays in trials, appeals and thereafter in executive
clemency,” the Law Commission of India 2015 report on the death penalty said. “During this
time, the prisoner on death row suffers from extreme agony, anxiety and debilitating fear
arising out of an imminent yet uncertain execution.”37

Some prisoners had waited for over a decade to learn the fate of their petitions; others had been
denied mercy even after providing evidence that could save their lives. This, the courts held,
violated the prisoners‟ right to life because the Constitution guaranteed them a fair shot at
mercy.

That‟s all it really is a shot in the dark. 45

Also, while awaiting the outcome of the mercy petition, the prisoner on death row is subjected

35
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.
36
Ibid.
37
Supra at 3 45Aparna Alluri, “The Quality of Mercy, Seeking mercy is the last resort for those on death row. It‟s
also the least transparent”, Hindustan Times, 27 may, 2016 available at
https://www.hindustantimes.com/static/deaths-door/thequality-of-mercy.html (Last accessed on Sept. 8, 2019)

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to a "lingering death", which is something more than mere extinguishment of life. He exists
under the specter of death, coping with crippling uncertainty about whether he will live to see
another day or not. This degrading and brutalising effect on the human spirit of the condemned
prisoner is the most disturbing and horrific aspect of the death row.38

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.39

The Constitution confers a right on such convicts and a duty on the Presidents and Governors
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. This trauma of being under a sentence of
death faced by the convicts is called the "death row phenomenon" which exacts its own mental
and physical punishment, even if the person is subsequently spared from gallows.40

V. DATA AND PROMINENT CASES

(A) Statics

The whole purpose of Article 72 is that it gives a death row convict a chance to cross-check
any errors committed by Supreme Court. The data, however, is not so happening, the 262nd
Law commission report shows that Presidents, with the exceptions of Mr. Rajendra Prasad and
Smt. Pratibha Patil has dealt with mercy petitions largely without mercy.

• According to information released by the government under the RTI Act, of the 77
mercy pleas decided by President between 1991 and 2010, 69 were rejected. R
Venkataraman

(1987-1992) rejected 44 mercy pleas, the most by any President.41

38
S.B. Sinha, “To Kill or Not To Kill: The Unending Conundrum”, National Law School of India Review, Vol.
24,
No. 1 2012, pp. 1-29
39
Supra at 29
40
Brandon L. Garrett, “The Banality of Wrongful Executions”, Mich. L. Review, 2014.
41
Anand Katakam and Aparna Alluri, “The Mercy Lottery, Who wins? That depends on who the president is”,
Hindustan Times, 26 May, 2019 available at https://www.hindustantimes.com/static/deaths-door/the-
mercylottery.html (Last accessed on Sept. 10, 2019)

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• Since India became republic till 1982, a period that saw six Presidents, only one mercy
petition was rejected. During 1982-97, three Presidents rejected 93 mercy petitions and
commuted seven sentences. Unfortunately, no pleas were decided during the tenure of
President K R Narayanan (1997-2002), after which A P J Abdul Kalam (2002-2007)
decided on two pleas, rejecting one and granting the other out of total 24 petitions.

• The most commendable work was shown by Smt. Pratibha Patil, the first woman
President of India (2007-2012) commuted 34 mercy pleas and rejected only five.50

• After her, the Finance Minister turned President Pranab Mukherjee (2012-17), on the
other hand, rejected 30 of the 33 mercy pleas he decided.42

• Among the prisoners whose mercy petitions were rejected by the President of India, the
median time spent in prison under trial was 16 years nine months, and median time
under sentence of death was 10 years five months.43

(B) Kasab’s Case

In regards to mercy petition Ajmal Kasab is a very interesting case to revisit. Kasab had of
course committed an unpardonable crime, and, due to damning photographs and videographic
evidence his guilt was not questioned. In Kasab‟s case his mercy petition was rejected on 5th
November, and the Maharastra government was informed about this on 8th November. Kasab
was informed about the rejection of his petition on 20th November that is a day before his
execution. The government‟s responsibility to inform the prisoner‟s family was purportedly
discharged by sending a fax to the Pakistan embassy on 20 November, though Kasab‟s full
village address was available to police and jail authorities. Those who petitioned the President
for mercy for Kasab learnt about the rejection of their petitions through the media only after
Kasab had been executed. 44

In this case there was clear violation of established procedure but what is more troubling is the
reason given by the government for this unreasonable secrecy. The Indian Home Minister and
Chief Minister of Maharashtra in separate interviews admitted that the rejection of petition and
date of execution was kept secret to prevent human right activists to move to the courts and
obtain injunctory relief. This is an extraordinary admission of defiance of the law in order to

42
Dev Gosami, “No Mercy: Pranab Mukherjee rejected 30 mercy petitions as President", India Today, 18 July,
2017, available at https://www.indiatoday.in/india/story/president-pranab-mukherjee-mercy-petitions-1025001-
2017-0718 (Last accessed on Sept. 12, 2019)
43
Chaitanya Mallapur, “371 Indians are on death row; only 4 have been executed in 13 years”, Business Standard,
28 May, 2018 available at https://www.business-standard.com/article/current-affairs/371-indians-are-on-death-
rowonly-4-have-been-executed-in-13-years-118052800123_1.html, (Last accessed on Sept. 12, 2019)
44
Supra at 18

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prevent recourse to lawful remedies.

And if we could not follow due process in letter and generous spirit in this major case, what
hope is there for other current and future convicts?

(C) Afzal Guru’s Case

Similarly, the case of Afzal Guru is criticized to have been decided on scanty evidence. It is
widely acknowledged that President Pranab Mukherjee‟s rejection of Afzal Guru‟s mercy
petition after seven-and-a-half years was in response to the pressure put on him by local
politicians return for political support during his election campaign.45 In a statement made by

President Pranab Mukherjee he said that “Before a mercy petition comes to the President, it
passes through various stages and different actions had already been taken.” He also stated
that the president only goes by the advice of the government and if government advices
rejection then the President has to comply by the advice. Also, he stated that the president
cannot assume the role of the court which has already considered the death penalty at various
stages.46

(D) Yakub Memon’s Case

In Yakub Menon‟s case it was argued by the petitioner was that President could not decide a
mercy petition overnight and that stay should be granted on Memon‟s execution for the next
14 days. Also, it was contented that the guideline laid down in Shatrughan Chauhan v. Union
of India has not been followed because as per the guidelines there must be atleast minimum
period of 14 days between receipt of communication of the rejection and the scheduled date of
execution. The petitioners further argued that Article 21 of the Constitution had been violated
as the convict has the right to legal aid at all stages including after rejection of mercy petition.
Other procedural faults were pointed out, such as the mercy petition to the President in April
2014 was filed by Memon's brother and couldn't displace his personal right to opt for mercy
petition and that the rejection of the mercy petition by the President should forthwith be
communicated to the convict and his family in writing or through some other mode of
communication available. Further, the guidelines require a 14-day gap between the receipt of
communication of the rejection of the mercy petition and the scheduled date of execution so

45
“Congratulations, now hang Afzal Guru, Thackeray tells Pranab”, Firstpost, 23 July, 2012 available at
https://www.firstpost.com/politics/congratulations-now-hang-afzal-guru-thackeray-tells-pranab-386832.html
(Last accessed on Sept. 12, 2019)
46
“Pranab Mukherjee says he rejected Afzal Guru‟s mercy petition based on government‟s counsel”, Scroll.in,
21 Oct, 2017, available at https://scroll.in/latest/854879/pranab-mukherjee-says-he-rejected-afzal-gurus-mercy-
petitionbased-on-governments-counsel-report (Last accessed on Sept. 12, 2019)

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that the convict has time to settle his affairs, prepare himself mentally for execution, to make
his peace with God and also to provide time to meet with his family members.47

VI. RECOMMENDATION
The following recommendations are made for improving the present condition with regard to
capital punishment and deciding mercy petition by the executive:

1. India should ratify the second Optional protocol, 1989 to the International Covenant on
Civil and Political Rights and the International Convention against torture, Cruel,
inhuman degrading treatment, 1984. In this regard, India must consider the
recommendations made by various UN Human rights bodies such as Human Rights
Committee.

2. Until India ratifies the second Optional protocol, 1989, it should adapt temporary
moratorium (suspension) on the application of death penalty and should expressly call
for imposition of prison terms instead of death penalty.

3. Till then Indian law must fix a time period within which the executive must decide the
mercy petition. The executive should consider mercy petition within a reasonable
period of time as inordinate, undue, and unreasonable delay in considering mercy
petition amounts to torture and violation of Human Rights.

4. Prisoners should be informed about the result of their mercy petition in writing within
a reasonable period of time.

5. The prison officials must ensure that prisoners should receive regular healthcare and
proper mental health evaluations

6. The constitution of India grants pardoning power to executive as it is the last resort to
save life of a convict who has been awarded death penalty. But because of political
factors, red tapism and procedural irregularities the disposal of mercy petition is
delayed. Therefore there is an urgent need of amendment in Law so that mercy petitions
are disposed quickly.

7. Government should follow the procedural guideline while deciding a mercy petition
such as proper communication of rejection of mercy petition, providing reasonable time
period between communication of rejection and execution.

Shilpa Jain, Aishwarya Mallik, “Death Penalty: Debated, Delayed not Denied”, Centre for Advanced Studies in
47

Human Rights, SCC online

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8. In cases of inordinate delay in deciding mercy petition Courts should consider such
inordinate delay as a ground for commuting a death sentence.

VII. CONCLUSION
Under the criminal justice system the purpose of punishment may be different such as
incapacitation, retribution, deterrence, reformation etc. Death penalty is considered to have
deterrent effect and incapacitate the criminal. However after World War II efforts were made
at international level to abolish death penalty as it violates human rights. This led to fierce
debate for and against death penalty. Various international and regional instruments directly or
indirectly impose restriction on execution of death penalty or explicitly provides for its
abolition. For example, Article 6 of ICCPR, 1966 impose restriction on death penalty whereas
OP II, 1989 talks about its abolition.

It has been observed from the past experiences that death penalty does not serve the deterrence
effect any more than imprisonment. We have move to society where more focus should be on
reformation of criminals. In a constitutionally mediated society there is no role of "an eye for
an eye, tooth for a tooth". It is very well known that death penalty is eminently fallible, yet
irrevocably final. It operates in a system that is highly fragile and open to manipulation and
mistake. The clemency power given to the executive plays a significant role in correcting errors
of judiciary. However after analysis the existing data and cases we can conclude that the
exercise of pardoning power under Articles 72 /161 as a final bulwark against the miscarriage
of justice arising from arbitrary, unfair or wrongful exercise of death penalty has also failed.
Because of many factors such as political influence, red tapism, procedural irregularities the
purpose of mercy petition has failed to realize its goal. The Supreme Court has repeatedly
pointed out the irregularities and gaps in deciding of mercy petition by the executives. When
even the exercise of mercy power is vitiated because of non-application of mind or gross
procedural violations, capital punishment becomes indefensible.

Therefore it is concluded that till India abolishes death penalty we should seriously reconsider
in reforming and improving the exercise of clemency power by the executive. It is important
because the arbitrary, inconsistent and erroneous use of the death penalty necessitates an
additional filter to correct miscarriages of justice and it humanizes the increasing
bureaucratization of our lives. Therefore, there is an urgent need for amendment in law of
pardoning power to make sure that mercy petition are dealt quickly and there are no procedural
violations.

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VIII. BIBLIOGRAPHY
Articles and Journal referred

• Anand Katakam and Aparna Alluri, “The Mercy Lottery, Who wins? That depends on
who the president is”

• Paul Whitlock Cobb, “Reviving Mercy in the Structure of Capital Punishment”

• Joshua D. Freilichtt and Craig J. Rivera, “Mercy, Death and Politics: An Analysis of

o Executions and Commutations in New York State”

• Shubhangi Agarwalla, “The Role of mercy”

• S. Muralidhar, “Hang Them Now, Hang Them Not: India's Travails with the Death

o Penalty”

• Aparna Alluri, “Seven Myths about the Death Penalty, Debunked”

• “Justice or Revenge? The death penalty has no place in a civilised society, but India
seems to celebrate it”

• Roger Hood, “The Death Penalty : A Worldwide Perspective”

• Aparna Alluri, “The Quality of Mercy, Seeking mercy is the last resort for those on
death row. It’s also the least transparent”

• S.B. Sinha, “To Kill or Not To Kill: The Unending Conundrum”

• Brandon L. Garrett, “The Banality of Wrongful Executions”

• Dev Gosami, “No Mercy: Pranab Mukherjee rejected 30 mercy petitions as President"

• Chaitanya Mallapur, “371 Indians are on death row; only 4 have been executed in 13
years”

• Shilpa Jain, Aishwarya Mallik, “Death Penalty: Debated, Delayed not Denied”

• Ernest van den Haag, “The Ultimate Punishment: A Defence 1986”.

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