The President of India is the constitutional head of the Union Government who exercises his constitutional powers and functions on the aid and advice of the Council of Ministers headed by the Prime Minister as per the mandate of Article 74 of the Constitution. The Constitution also empowers him to grant pardon to convicted persons under Article 72. Under this provision, the President can grant pardon, reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases-(a) where the punishment or sentence is by a court martial; (b) where the punishment or sentence is for an offence against a law relating to a matter to which the Union’s executive power extends; and (c) of a death sentence. This, however, does not affect the power conferred by law on any officer of the Union armed forces to suspend, remit or commute a sentence passed by a court martial, as well as the power exercisable by the State Executive to suspend, remit or commute a death sentence. Generally, the common people have an impression that the President exercises this power personally and he can grant pardon to any convict at his own discretion. But this is not true. In actual constitutional scheme and practice, the President acts on the advice of the Home Minister of the Union Government and he has no personal say in these kinds of cases. The Supreme Court has also settled this jurisprudence in several cases including the Kehar Singh case. However, the President can ask the Home Minister to reconsider the matter but if the Home Minister reiterates his recommendation, the President is bound to act according to his advice.
Admittedly, no time limit is mentioned in the Constitution to decide the mercy petitions by the President of India or the Governors of States. But the Supreme Court has suggested the government to decide the mercy pleas expeditiously. Also, in several cases, the Supreme Court has held that inordinate delay in deciding a mercy plea could be a ground for commuting a death sentence into life. Any person, including a foreign national, can send a mercy petition to the President or the Governor who sends the same to the Ministry of Home Affairs for taking the necessary input. The convict can file the mercy plea from the jail either through the prison officers or through his/her lawyer. These mercy petitions can also be sent via email. This piece focuses on how the President of India decides on the mercy petitions.
In his memoirs titled “My Presidential Years”, former President of India Mr. Pranab Mukherjee has narrated the story of the disposal of mercy petitions. Mr. Mukherjee states that the disposal of mercy petitions is a very sensitive matter which needs careful reading and application of mind. This is what Mr. Mukherjee said about this issue: “The President is not the punishing authority; the punishment has already been given by the court. The President is the last resort. Thus, a humane aspect arises by the time the President comes into the picture. I was constantly aware while handling such cases that I was the last hope for the convict and that his life was in my hands. It was not an ordinary, routine government file that I was dealing with. I used to take more than a week to read the case history and the court judgments. But I took no more than three weeks in all to dispose off a file”.
Notably, during his presidential tenure (2012-17), President Pranab Mukherjee rejected 30 mercy petitions involving nearly 40 convicts as some of his predecessors had left many petitions undecided. On this issue, Mr. Mukherjee states in his memoirs: “My distinguished predecessors, A. P. J. Abdul Kalam and Pratibha Patil, had left a large number of cases pending. In fact, Kalam hardly disposed off any mercy pleas while Patil had decided on a few of them. The latter had granted clemency to 34 convicts and rejected just three petitions for mercy. Different Presidents have different approaches”. Further, Mr. Mukherjee states: “I saw no point in keeping such files pending. The once I dealt with dated as far back as the years 2000, 2004, 2005, and 2007. Either way, they had to be decided and I took it upon myself to discharge the responsibility. The law of the land had to be upheld. While I deliberated long and hard over the files of mercy pleas, once I had taken a decision-I let the issue rest. I may have had sleepless nights while considering my decision, but after the decision was made, the matter was closed as far as I was concerned. I did not follow the developments thereafter in detail, though I did keep in touch with the issue in the general sense. It is a futile exercise for a President to closely follow the trajectory after he has done his job. I cannot say for certain if my successors will follow my example of disposing of mercy petitions quickly; after all, I did not follow the examples of my predecessors”.
About the factors that played on his mind while deciding the several mercy petitions, this is what Mr. Mukherjee states in his memoirs: “Over the years, broad outlines for dealing with mercy petitions had evolved. However, three factors played on my mind. The first factor was that the case by nature must have involved ferocity and cruelty, and it must fall within the rarest of rare category. Two, the death sentence, given by the trial court, should have been upheld by the High Court and the Supreme Court without any dissenting voice-in other words, with unanimous verdicts. And three, the Government should have recommended the rejection of the petition. Once these conditions were met, the President ought to have no problems in setting aside the mercy petition. This is the position I took as President. Generally, once the President rejects a mercy plea, the matter does not return to the Supreme Court unless fresh issues of technicality or legality are introduced. In certain cases, appeals for mercy are made to the Governor. I do not recollect any instance where I granted mercy after the Governor had rejected the plea”.
It is noteworthy that President Pranab Mukherjee used to read the mercy pleas deeply along with the judgments of the courts that convicted the petitioners and other materials attached with the files. “I would carefully read through the details, and even the court proceedings and verdicts, if they were in English. If they were in Hindi or a local language, then I would seek to understand the gist of the issue. In most cases, the judgments were in English. I remember a case that I read in detail, where a daughter (in collaboration with her husband) had killed her father and younger brothers over a property issue. The Sessions Court’s ruling was in Hindi”.
On the issue of exercise of the President’s pardoning power, Mr. Mukherjee said that the President acts on the recommendation of the Home Minister of the Union Government and has no scope to use his discretion in such matters. “While I, as President, had applied my mind to all the cases of mercy pleas that were presented to me with recommendations of the government, the fact remains that the President normally goes by the recommendation of the Ministry of Home Affairs in such cases. If the government recommends the rejection of a mercy plea, then the President has to concur; if the government favours a mercy petition being accepted, the President does so. 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”.
It is submitted that the President of India has no discretion in deciding the mercy petitions and such pleas are decided by the Home Minister of the Central Government in actual constitutional practice. It is the Union’s Home Minister who sends his inputs/advice to the President of India to complete the constitutional formalities as per Article 72 of the Constitution. However, the President can ask the Home Minister to reconsider the recommendation in the light of his comments/observations, etc. But thereafter the final power rests with the Home Minister and the President cannot impose his views on the government. The President and the government can also scrutinize the evidence on record of the criminal case and come to a different conclusion from that recorded by the court regarding the guilt of, and sentence imposed on the convict. Adjudication of a case is entirely different from the mercy petition’s disposal by the President or the Governor, as the case may be.
Time and again, the Supreme Court of India has observed in many cases that the President and the Central Government should not sit on the mercy petitions for a long time and should decide such pleas within a reasonable time. In some cases of inordinate delay in deciding the mercy petitions, the Supreme Court/High Courts have also commuted the death sentence to life imprisonment. But it all depends on the facts and circumstances of each case. In addition, if the President rejects the mercy petition of a convict, the aggrieved person can challenge the validity of the rejection of the mercy petition in the Apex Court on limited grounds. Also, until the disposal of the petition, the convict cannot be hanged by the prison officials. This is the jurisprudence relating to the disposal of mercy petitions in the country. Thus, the pardoning power belongs to the Central Government, not the President of India. Former President Pranab Mukherjee’s memoirs are very useful to learn about the actual disposal of mercy petitions. Let me conclude this piece with these insightful observations made by Justice Krishna Iyer made in the Maru Ram case: “It is not open either to the President or the Governor to take an independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns….that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power…that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment, silences speculation and obligates compliance”.
Time and again, the Supreme Court of India has observed in many cases that the President and the Central Government should not sit on the mercy petitions for a long time and should decide such pleas within a reasonable time. In some cases of inordinate delay in deciding the mercy petitions, the Supreme Court/High Courts have also commuted the death sentence to life imprisonment.
