Mercy petitions: India
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Commutation
30% of all mercy petitions since 1947 commuted to life
The Times of India, October 10, 2015
Himanshi Dhawan
Since '47, 30% of all mercy petitions commuted to life
3,534 of 5,106 pleas were turned down
About one-third of all mercy petitions in Independent India have been commuted to life imprisonment, with a report stating that 3,534 of 5,106 petitions were rejected while 1,572 were considered. This is the first such estimate of mercy petitions filed since Independence, collated by the Asian Centre for Human Rights (ACHR) in its report Status of Mercy Petitions in India.
The report comes close on the heels of controversial execution of 2012 Mumbai terror blast convict Yakub Memon earlier this year. A law com mission report on death penalty has recommended strik ng off capital punishment rom the statute books except n terror-related cases, lead ng to widespread debate.
There are no official statis ics on the actual number of mercy petitions filed by convicts on death row in independent India. Here is an indication of the prevailing confusion: in 2013 the minis ry of home affairs told the Supreme Court that over 300 mercy petitions were filed be fore the President by death row convicts between 1950 and 2009. However, the MHA had earlier informed the Rajya Sabha on November 29, 2006 that 1261 mercy petitions had been disposed of by the President between 1965 and 2006.
As on August 5, 2015, four mercy petitions are pending: two each with the President and the MHA.
The study also points out that while the government has issued guidelines in dealing with mercy petitions, but in an analysis of 41 cases, it was found that these norms were violated on several occasions.These included cases where the government withheld information related to medical records of a prisoner from the President, cases where the mercy petition was lost and one where the government continued to pursue the mercy petition of a prisoner even after his death in a prison.
“That there are no accurate records and gross violations in mercy petition cases shows the callousness of the government on the question of life and death and the respect for human dignity ,“ said Suhas Chakma of ACHR.
Speaking on the report, former law commission chairperson Justice (retired) A P Shah said the government's guidelines need revision and the time for challenging mercy petitions before the President should be increased from a week to 90 days.
Governor’s role
SC: Governor must act not on own judgement
AmitAnand Choudhary, May 19, 2022: The Times of India
New Delhi: The Tamil Nadu governor’s decision to refer Rajiv Gandhi assassination convict Perarivalan’s remission plea to the President despite cabinet recommendation “is without any constitutional backing and is inimical to the scheme of our Constitution”, the SC said while ordering his release. The bench said governor must act not on own judgment but in accordance with the aid and advice of ministers. “The constitutional conclusion is that the governor is but a shorthand expression for the state government,” it said. “The law laid down by this court is clear and explicit. The advice of the state cabinet is binding on the governor in matters relating to commutation/remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the governor’s power to refer a recommendation made by the state cabinet to the President. In the instant case, the governor ought not to have sent the recommendation made by the state cabinet to the President. Such action is contrary to the constitutional scheme elaborated above,” it said.
The court rejected the Centre’s contention that the President is the appropriate authority to decide on the remission plea of a person convicted under a central law. It said, “ . . . insofar as offences under Section 302, IPC are concerned, in the absence of any specific provision under the Constitution or under law made by the Parliament expressly conferring executive power on the Union, the executive power of the state would extend, irrespective of whether the subject matter of Section 302 is considered to be covered by an Entry in List II or an Entry in List III of the Seventh Schedule. ”
Once the death sentence awarded to him was commuted in 2014, Perarivalan moved for a remission plea and the state cabinet backed it but the governor sat on the recom- mendation for two-and-a-half years and referred the case to the President when SC raised questions on the delay on the part of the head of the state. “Given that his petition under Article 161 remained pending for two and a half years following the recommendation of the state cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the governor, we don’t consider it appropriate to remand the matter for the governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142, we direct that the appellant is deemed to have served the sentence in connection with the Crime No. 329 of 1991,” the bench said.
Presidents and mercy pleas
First 6 presidents rejected only 1 of 263 mercy pleas
The Times of India, Sep 02 2015
Pradeep Thakur
First 6 presidents rejected just 1 of 263 mercy pleas
At 45, Most Pleas Denied By Venkataraman
The first six presidents of independent India received 263 mercy petitions from those who were on death row, of which only one was rejected and the rest commuted to life imprisonment. The only rejection of a mercy petition was by Dr Rajendra Prasad during the tenure of the first six presidents from 1950 to 1982. Prasad commuted the death sentence in 180 of the 181 mercy petitions that he received.
S Radhakrishnan, Zakir Husain and V V Giri received 57, 22 and 3 mercy petitions, respectively , and all were commuted to life. Fakhruddin Ali Ahmed and Neelam Sanjiva Reddy didn't have to deal with any mercy petition during their tenure (1974-82).
This was not the case though with many of their successors. Zail Singh and his successors, R Venkataraman and S D Sharma, had between them received 100 mercy petitions of which they rejected 93. Venkataraman rejected the maximum number of mercy petitions (45), followed by incumbent President Pranab Mukherjee, who rejected 31 of the 33 petitions he has so far received from death row convicts. Mukherjee has an other nearly two years left of his presidency .
Since Independence, 437 mercy petitions have been filed with successive Presidents. Of these 306 cases were commuted to life.
All this was compiled by the Law Commission and forms part of its report on death penalty released on Monday. The panel analysed the figures to suggest that “a death-row convict's fate in matters of life and death may not only depend on the ideology and views of the government of the day but also on the personal views and belief systems of the President“.
Between 1997 and 2007, two Presidents -K R Narayanan and APJ Abdul Kalam -kept pending almost all the mercy petitions they received. While Narayanan did not take decision on any of the mercy petitions before him, Kalam acted only twice, rejecting one and commuting the other to life.“During their combined tenure of 10 years, they put the brakes on the disposal of mercy petitions,“ the report said.
Pratibha Patil (2007-12) commuted death sentence to life in 34 cases while rejecting five mercy petitions.
1991: President’s delay on mercy petition
Landmark order after Prez’s delay
Prafulla Marpakwar | TNN
Mumbai: While there is debate over the delay in deciding mercy petitions pending before Rashtrapati Bhavan, former President R Venkataraman faced an embarrassing situation in 1991 following an unexpected court order. The Bombay High Court commuted the death sentence of a murder convict to life in jail following the failure of the then President to take a decision on the mercy petition.
A Pune-based agricultural labourer had been involved in a murder and was given the death sentence by the trial court. Later, the high court upheld the sentence as also the apex court in 1984. The convict then knocked on the doors of Rashtrapati Bhavan with a mercy petition.
For several years, there was no response from Rashtrapati Bhavan. The convict then filed a petition before the high court, saying that it should ask the President of India to take a decision on the mercy petition as early as possible.
In 1991, Justice S W Puranik, who heard the case at length, passed a landmark order saying that, since the mercy petition had been pending before the President of India for a long time, the court was commuting the death sentence to life imprisonment. The judge observed that a mercy petition can’t be kept pending for an indefinite period and decisions on such petitions should be taken within a reasonable period of time. “We feel that mercy petitions should be disposed of within a reasonable time,’’ Puranik observed.
Now, though Puranik has retired, there is no change in his views. The former judge of the high court says the President must dispose of mercy petitions within a reasonable time, like six months to a year.
Reviewing the President’s decision
2013: The government seeks a review of the SC’s May 1, 2013 judgment
Govt: SC can’t review President’s mercy plea calls
Dhananjay Mahapatra TNN
The Times of India 2013/07/07
New Delhi: The Centre is all set to legally lock horns with the Supreme Court by questioning the court’s powers to call for judicial scrutiny of the President’s exercise of constitutional power to grant pardon or commute sentences of condemned prisoners.
“The decision of the President under Article 72 of the Constitution, either accepting or rejecting a petition, is a sovereign act. This sovereign act is performed after the courts have given their verdict and this sovereign act cannot be subjected to review by the Courts,” the Centre said.
The government said this in its petition seeking review of the SC’s May 1 judgment, commuting the death sentence of double murder convict M N Das to life.
MERCY PETITION ‘Presidential delay no case for plea review’
New Delhi: Delay by the President in consideration of a mercy plea cannot be ground for the Supreme Court to reopen cases of death penalty, the government has said in a review petition in the apex court.
“Once the mercy petition has been decided by the highest constitutional authority, the President of India, the courts should not allow reopening of the case, as the case has achieved its finality. Otherwise, reopening of the cases would be unending and it may never attain finality,” the Centre said in its petition seeking review of the SC’s May 1 judgment commuting the death sentence of double murder convict M N Das to life. The court had done so on the ground that there was inordinate and inexplicable delay on President’s part to reject his mercy plea.
“Entertaining of an appeal after the President has rejected the mercy petition also amounts to reopening the case,” the government said. While saying it had fully explained the decade-long movement of Das’s mercy plea file both in the ministry of home affairs and the President’s Secretariat, the Centre, for the first time, questioned the apex court’s jurisdiction to reopen cases of death penalty after rejection of mercy pleas by President.
The petition was also aimed at curbing the increasing trend among condemned prisoners to move high courts the apex court after rejection of their mercy pleas by Governor or President.
In 2013 the SC had rejected Delhi blast convict Devenderpal Singh Bhullar’s plea for commutation of death penalty to life sentence. However, it accepted Das’s plea on the ground that there was an 11-year delay in deciding his mercy plea by the President.
The Centre did not forget to rub in the delay on the judiciary’s part either in deciding murder cases, from trial stages and appeals through the HC up to the SC. Why it is that adverse view was taken of the delay by the executive in deciding the mercy plea and not that of the judiciary, it asked.
“No distinction can be drawn between the delay during the trial and the delay in considering the mercy petition by President. It cannot be said that delay during the trial is justified and the delay by President in consideration of the mercy petition is not justified,” the Centre said.
It said as soon as the SC rejects an appeal against death sentence, the prisoner goes into mental agony recognizing that he had inched closer to the hangman’s noose. But since the execution is stayed during the pendency of mercy pleas, delay in deciding such mercy petitions actually keeps alive the ray of hope for life in the condemned prisoner. So, delay in deciding mercy pleas does not cause any additional mental agony for the condemned prisoner, the Centre reasoned.
Jan 2014: The judgement of the Supreme Court
SC gives life to 15 after Prez okayed death
Says Delay, Mental Illness Valid Grounds
Dhananjay Mahapatra TNN The Times of India
New Delhi: In an unprecedented judgment, the Supreme Court on Tuesday freed 15 condemned prisoners — each awarded death sentence for multiple brutal murders — from the fear of the noose by commuting their punishment to life term, saying the President took an inordinately long time to reject their mercy pleas.
The court came to the rescue of the 15, some of whom had been served with execution warrants, on two grounds — “inordinate, undue and unexplained” delay in disposal of their mercy pleas and “non-consideration of their mental illness”.
The court also fixed a mandatory 14-day gap between rejection of a mercy petition and the hanging to allow the convict to prepare for death and meet his family for the last time.
A bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh said, “Keeping a convict in suspense while consideration of his mercy petition by the President for many years is...an agony for him/ her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death.”
Authoring the 157-page judgment for the bench, Justice Sathasivam said, “Indisputably, this court, while considering the rejection of the clemency petitions by the President, cannot excuse the agonizing delay caused to the convict only on the basis of gravity of crime”. It affected their right to life, he said.
While 13 were spared the noose for delay in disposal of mercy pleas, ranging from six-and-a-half years to 12, the court found two others to be mentally ill.
SPARED NOOSE
Suresh (60) and Ramji (45) Wiped out family of Suresh’s brother. In jail for 17 yrs. Delay in deciding on mercy plea | 12 years
Bilavendran (55), Simon (50), Gnanprakasam (60), Madiah (64) | Veerappan aides. Jail | 20 yrs Plea delay | 9 yrs
Praveen Kumar (55) Murdered 4 of a family. Jail | 15 yrs 9 mths Plea delay | 9.5 years
Gurmeet Singh (56) Murdered 13 of a family. Jail | 26 years Plea delay | 7 years 8 months
Sonia (30), Sanjeev Kumar (38) Killed 6 of family. Jail | 12 yrs Plea delay | 6 years
Jafar Ali (48) Killed wife and 5 daughters Jail | 11 years 5 mths Plea delay | 9 years
Shivu (31) & Jadeswamy (25) Rape-cum-murder of minor. Jail | 12 years Plea delay | 6.5 years
‘Insanity is a crucial factor to consider’
New Delhi: Holding that delay in disposal of mercy petitions was a ground for commutation of death sentences, the Supreme Court on Tuesday laid down several guidelines to ensure that even condemned prisoners got a humane death.
A bench comprising CJI P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh said a minimum 14-day gap should be given between intimation of rejection of mercy petition to the condemned prisoner and the execution.
The SC also laid down elaborate guidelines to speed up the process for presidential consideration of mercy pleas and said each of them was entitled to free legal aid from the state to help them prepare mercy petitions and challenge their rejection.
Commuting the death sentence of two prisoners who had developed mental illness, the bench said, “The direction of United Nations International Conventions, to which India is a party, clearly shows that insanity/mental illness/ schizophrenia is a crucial supervening circumstance, which should be considered by this court in deciding whether in the facts and circumstances of the case of death sentence could be commuted to life imprisonment. To put it clear, insanity is a relevant supervening factor for consideration by this court.”
Delays in the disposal of mercy pleas
Mercy plea disposal delay a recent trend
Dhananjay Mahapatra TNN
The Times of India January 2014
New Delhi: Mercy petitions by condemned prisoners used to be decided within a maximum of 11 months till the 1980s but of late, it has become a trend to keep it pending with the President or home ministry for up to 12 years, the Supreme Court noticed much to its surprise.
While commuting the death penalty of 15 convicts to life imprisonment on the ground of “unexplained and inordinate delay” in deciding mercy pleas, which were kept pending for six to 12 years, the SC referred to a compilation of rate of disposal of mercy petitions in the past.
A bench of CJI P Sathasivam and Justices Ranjan Gogoi and S K Singh said, “Mostly, until 1980, the mercy petitions were decided in minimum of 15 days and maximum of 10-11 months. Thereafter, from 1980 to 1988, the time taken in disposal of mercy petitions gradually increased to an average of four years.”
The bench found that the apex court delivered two judgments, one in 1983 (Vatheeswaran case) and another in 1988 (Triveniben case), developing the jurisprudence of commuting death sentence because of undue delay in disposal of mercy petitions and directing the authorities to take expeditious decision on such pleas by condemned prisoners.
These two judgments reduced the time taken for deciding mercy petitions from 1989 to 1997 and the average period for disposal of such pleas came down to five months from the earlier four years.
Justice Sathasivam, writing the judgment for the bench, lamented that governments had reverted to their old habit of sitting on mercy pleas. “History seems to be repeating itself as now a delay of maximum 12 years is seen in disposing of mercy petitions under Article 71 (by the President) and Article 161 (by the governor) of the Constitution,” he said.
The bench said, “We believe mercy petitions under Articles 72/161 can be disposed faster … if the procedure prescribed by law is followed in verbatim. Although no time frame can be set for the President... we can request the concerned ministry (home affairs) to follow its own rules rigorously which can reduce.... the delay caused.” It added, “We are of the view that undue, inordinate and unreasonable delay in execution of death sentence does attribute to torture ... and thereby entails as ground for commutation of sentence. However, the nature of delay, whether it is undue or unreasonable, must be appreciated based on facts of individual cases and no exhaustive guidelines can be framed in this regard.”
Govindasamy: mercy after 22 years on death row
After 22 years on death row, he got mercy
Viju B | TNN
Mumbai: He spent the best years of his life on the verge of hope and despair. But for R Govindasamy, who is currently jailed in Coimbatore, the hangman’s noose is no longer a nightmare. Govindasamy, who was sentenced to die, got a reprieve last year [2006 0r 2008] when his punishment was commuted to life imprisonment.
The President of India, after hearing Govindasamy’s mercy petition for the second time, commuted the sentence to a life term. Data from the President of India’s Secretariat shows that Govindasamy was on death row for 22 years after the trial court sentenced him on June 24, 1987. The Erode resident had been arrested for murdering his paternal uncle Nagamalai Gounder, the uncle’s wife Ponnuthai Ammal, their two daughters and a son over a land dispute in Kondayampalayam village in Tamil Nadu.
“This was a tragic case in which the accused, who hailed from a very poor family, had allegedly killed his relatives as they had been accused of usurping his property,’’ said Chennai-based B Suresh, president of the People Union of Civil Liberties (PUCL), which took up Govindasamy’s case.
A PUCL committee, which recorded the statements of villagers in the mercy petition, said Govindsamy was a simpleton whose uncle had allegedly tortured Govindasam’s parents and, on the fateful day, forced them to sign a paper to usurp their property. “We requested in the plea that the President should look into the social and economic background of the person. The apex court gave an order looking at the legal side of the case. But we asked the President to consider the socio-economic background of the person and his conduct in prison,’’ said Suresh.
SC: Court must not be carried away by mercy petitions
The Times of India, Aug 21 2015
AmitAnand Choudhary
`CRY FOR JUSTICE' - `Courts mustn't be carried away by passion of mercy'
A Supreme Court bench ruled that an extremely liberal sentencing policy militated against legal permissibility and social acceptability. A bench of Justices Dipak Misra and Prafulla C Pant pointed out the casual manner in which courts were exercising discretion in awarding sentences.
Disapproving Punjab and Haryana High Court's decision to reduce sentences of three convicts in a case of abetment to suicide to four months and 20 days jail term already undergone by them, the SC said a court must not brush aside the agony of victims while taking a lenient and merciful approach toward criminals.
Justices Misra and Pant understood society's expectation for justice. “Society waits with patience to see that justice is done. Society hopes for it. When criminal culpability is established but discretion is irrationally exercised by the court, the said hope is shattered and patience is wrecked,“ the bench said.
Writing the judgment for the bench, Justice Misra said, “A court, while imposing sentence, has a duty to respond to the collective cry of society.“
The bench added, “It has come to the notice of this court that sometimes, the court of first instance as well as the appellate court which includes the high court, either on individual notion or misplaced sympathy or personal perception, seem to have been carried away by passion of mercy.“
The HC had reduced the sentence on the ground that the convicts, whose sister was teased by the victim, were first-time offenders and belonged to a lower caste. “We are constrained to say that the learned single judge, while dealing with the appeal preferred by the convicts, has remained quite unmindfulto the obvious and, therefore the sentence imposed by the learned trial judge is restored,“ it said.
Remission of sentence after 14 years by the Supreme Court
The Times of India, Jul 24 2015
SC gives states some room to free lifers after 14 years
Dhananjay Mahapatra
The Supreme Court has lifted its year-long order restraining state governments from granting remission of sentence to life convicts who have been in jail for more than 14 years, but clarified that this relaxation should not be used to free convicts sentenced to life in rape-cummurder cases and certain other circumstances. Thousands of lifers in states, eligible for remission having spent 14 years in jail, would benefit from this inter im order given by a bench of CJI H L Dattu and Justices F M I Kalifulla, P C Ghose, A M Sapre and U U Lalit.
But the seven life convicts in the Rajiv Gandhi assassination case -Murugan, Santhan, Perarivalan, Nalini, Robert Pais, Jaykumar and Ravichandra -whose pro posed release by the Tamil Nadu government had led to the passing of the order won't benefit from this.
They would have to await the final decision of the fivejudge bench, which would decide whether Tamil Nadu was the “appropriate government“ to exercise the remis sion power in the case which was investigated by a central agency such as CBI.
Apart from rape-cummurder cases, the court spelt out several riders while agreeing to relax the stay on its order of July 9 last year. States won't remit the sentences of those convicts who've been awarded life sentence by the Supreme Court or high courts specifying the period of life sentence that's 20 years, 25 years, 30 years etc.
No remission would be granted to those awarded life sentence on being convicted under a central law or in a case which was investigated by a central agency like CBI. This means states can grant remission to those lifers who've been convicted under the Indian Penal Code. However, this relaxation won't be applicable to those convicted under IPC provisions for rape-cum-murder cases.
The court also said that the states won't suo motu exercise their remission powers. It can only be exercised if the life convict made an application under the relevant provisions.
The President and the governor could exercise their powers to commute or remit sentences using their constitutional powers under Article 72 and 161 of the Constitution except in the cases where the court has barred exercise of remission powers by the state governments. The order had put a ban on release of those lifers who earned remission through their good conduct during the 14 years of incarceration and the state governments were repeatedly pleading with the apex court to relax the omnibus stay on exercising remission powers. All the states had unanimously requested for relaxation of the stay ordered by the Supreme Court last year while it restrained the Tamil Nadu government from exercising its remission powers under Section 432-433 of the criminal procedure code to release the seven life convicts.
Prior to the SC's restraint order, states released hundreds of life convicts every year after granting remission of sentences.
Jail for entire life will kill aspiration for good conduct: SC
The Times of India, Jul 24 2015
Dhananjay Mahapatra
The Supreme Court said if life sentence meant imprisoning a convict for the rest of his life, it would be better to award death penalty as confining him to prison till death would mean killing his hopes and aspiration to be counted as a member of society after release. The apex court, which has awarded life term in five cases since 2001 specifying that the prisoners would be confined to jail for the rest of the life by barring the states from exercising remission powers, appeared to have developed second thoughts about the efficacy of such a sentence.
Arguing in the case of proposed release of convicts in Rajiv assassination case, solicitor general Ranjit Kumar pointed out that the apex court's 1980 judgment in Maru Ram case had requested Parliament to weigh whether 14 years' imprisonment was a just quantification of adequate punishment in cases where life imprisonment had been awarded.
The 35-year-old judgment had said that life sentence meant imprisonment for life but had recognized the power of the states to grant remission under Section 432-433 of criminal procedure code.
Before the SG left the arguments half-way on getting message about his father's critical health health condition, a five-judge bench headed by Chief Justice H L Dattu said: “Even after 35 years, Parliament has not thought about whether 14 years' imprisonment was just punishment for a heinous crime.Is this the correct antidote? “What purpose will be served if life sentence meant incarceration for entire life? This would mean a lifer will have no hope of ever coming out of prison. It will kill his hopes and aspiration to show good conduct during imprisonment to earn remission. It will wipe out his hope to be assimilated in the society after release. It is better to award death penalty.
“By showing good conduct, a lifer hopes to come out of jail after serving 14 years in jail. A prisoner could prove to be a fine human being. But, by directing that life sentence meant im prisonment for life, are we preventing the legislature and government from enacting a law on this issue,“ the bench asked.
The apex court had since 2001, awarded life sentences in five cases specifying that the convict would not be released till death. These convicts are: Swamy Shraddananda (2008) for killing wife for property in Karnataka; Sebastian aka Chevithiyan (2010) for rape and murder of a two year-old in Kerala; Subhash Chandra (2001) for gunning down an entire family due to enmity; Jayawant D Suryarao (2001) for killing two policemen in Maharashtra; Subhash Chander (2001) after his counsel bartered his client's freedom for entire life for commutation of death penalty .
Since 2001, the court had awarded prison terms varying between 20 to 25 years to 12 persons for gruesome murders. In eight cases since 2009, the apex court has specified 30 to 35 years' jail term while sentencing the convicts to life imprisonment.
The Supreme Court's observation that a person imprisoned for life has nothing to look forward to and hence no reason to reform rings true. Clearly, however, this cannot mean that nobody should be put away for life.There will always be a category of criminals, based on the heinousness of their crime, who will have to be considered a menace to society and hence cannot be allowed to roam free. Serials rapists or serial killers, are instances that spring to mind.Particularly when the demand for doing away with capital punishment is gaining ground, it is important to have a provision that allows some people to be put in jail for life.
