A CRITICAL STUDY ON CLEMENCY & SENTENCING By - Romita Modi

A CRITICAL STUDY ON CLEMENCY & SENTENCING

 

Authored By - Romita Modi

 

ABSTRACT:

“The weak can never forgive; forgiveness is the attribute of the strong- Mahatma Gandhi”

 

The connection between sentences awarded and pardons are at least as old as Hammurabi's Code, in which the punishment was prescribed. Still, it was balanced by restrictions that limit retribution, citing any mitigating situations.

 

The judiciary analyses the legal grounds for inflicting punishments while making judgments and is not free to make decisions based on sympathy. The executive is believed to serve the function of neutralizing the judiciary's insufficiently humane findings by exercising the authority to pardon.

“Mercy is not the subject of legal rights; where legal rights end, it begins,” says Lord Diplock

In the case of “Mohinder Singh v. the State of Punjab”[1], the above principle was acknowledged in India.

 

The mercy provides a ray of hope for a fresh & new beginning in the life of the person who gets convicted by the judiciary. It acknowledges the reformation aspect of the justice delivery system. In this article, the author will try to cover various concepts viz impact of sentencing, various factors that lead to specific sentencing, kinds of pardons available under the Indian Constitution, historical background of pardoning power, how the clemency works in other countries like the U.S. and U.K., purpose and scope of the clemency along with the recent exercise of clemency in India and then a comparison will be drawn on the power of clemency lying with the President & the Governor in India and after going through the clemency statistics in India, U.S., U.K, and Canada conclusion will be drawn by the author for the significance of clemency and how should it work within its ambit so as not to interfere in Court of law judgement procedure at the same time maintaining the integrity of clemency in correcting sentencing errors in democratic set up.

 

 

INTRODUCTION:

According to Criminologist “Durkheim,” a society with zero crime is "pathologically excessively regulated." Any act or omission of a duty that causes harm to society and is punishable by the state is characterized as a crime. When any crime is committed, all the pillars of the criminal justice administration must play a specific role, where police deal with the investigation, courts deal with the trial, and award sentences to the criminals. Correction homes ensure that the criminals are isolated from the societal course for some time so that the society is protected from such crimes and the criminals are reformed and rehabilitated to become part of society in the future.

The impact of sentencing is many, like protection of society, deterrence for the prospective offenders, denunciation, and rehabilitation. The purpose of the sentencing is to do justice, act as deterrence for the future criminals, and ensure rehabilitation, resettlement, and reformation.

 

 

                                                               

 

There are various factors that lead to any specific sentencing as follows:

• Whether the nature of the offenses qualifies as social or economic offenses,
• What is the nature of the offenses, petty or severe?
• What are the circumstances under which the offenses were committed, mitigating and aggravating circumstances considered while awarding any sentence?
• What has been the record of the offender, e.g., repeat offenders or a first-timer,
• Age and culpability of the offenders,
• Professional and social record of the offender, the good and clean record is sought as a ground of mercy and lesser punishment by the defense Counsel,
• Level of education, kind of the family life he is into; mental state of the offender as well as his prospects for RRR,
• Possibility of treatment and imparting of skill into him for leading an everyday life,
• And the most crucial factor is the sentence must act as a deterrence for future crime and criminals.

 

The sentence awarded by the Judges decides the fate of the person, whether he will be acquitted or convicted, after considering the relevant facts, facts in the issue, and evidence produced before the Court. If convicted, the sentencing can be determinate, indeterminate, presumptive, and mandatory. Even if the sentence awarded is specific or fixed, there remains the chance of changes in it by way of clemency.

 

The clemency power lies with the President and the Governor, respectively, at the Centre and State levels. The clemency, also known as the pardoning power, has been given under Articles 72 and 161 of the Indian Constitution. Article 72[2] provides for the President’s pardoning power, and Article 161[3] the Governor’s pardoning power. Although the Constitution has the provision for the pardoning power, there are no such guidelines in the Constitution on how these powers need to be exercised. This power is mainly given to correct the miscarriage of justice done by the judiciary. It is available in many countries across the globe.

 

Executive clemency or mercy petition can be in the form of pardon, commutation, remission, respite, and reprieve of the sentence awarded. The pardon of death sentence and court-martial are available with the President only. A little brief information regarding these pardoning powers is:

• Pardon: it completely absolves the offender. The convict becomes a free man, and he is not supposed to undergo any further sentence or any other form of a conviction.
• Commutation: it is another kind of clemency or mercy awarded to the convict where one form of a sentence is substituted by another form of a sentence. E.g., the death penalty gets commuted to rigorous imprisonment which again gets commuted to simple imprisonment.
• Remission: in this type of clemency, the same nature of sentence is awarded but for a lesser duration. E.g., rigorous imprisonment for 2 years can be remitted to 1 year of rigorous imprisonment.
• Respite: in this type of clemency, a special situation is being paid attention to where the lesser sentence is awarded than the original sentence because of e.g., the physical disability of the convict or the pregnancy of the woman convict.
• Reprieve: it is the type of clemency where there is a temporary suspension of execution of the sentence is done especially the death sentence so that the convict gets time to apply for mercy and other available remedies.

Despite the availability of the power of clemency, there are various practical difficulties in its proper and timely execution. For example, no guidelines for speedy disposal of petitions under Article 72 or 161. This questions the entire purpose of sentencing. It is also against Ar 21[4], which includes a speedy trial as one of the fundamental rights laid down under “Husaainara Khatoon versus Home Secretary Bihar” and again in the “A.R. Antulay case.”

The inordinate delay affects both the criminals and also the victims. Project 39 A work on “deathworthy”[5] highlighted the mental illness among the offenders waiting for the decision on the mercy petition. So, the inordinate delay instead of causing mercy proves to be cruel.

 

Article 74[6] of the Indian Constitution imposes the condition that the President has to act on the aid and advice of the Council of Ministers & particularly the Home Ministry. However, the situation might be where the suggesting authority might be biased. This situation has been found in Kehar Singh v. Union of India (popularly known as the Indira Gandhi Assassination case), where the Council of Ministers comprising of the Congress party had to decide on the mercy petition of the assassin of Indira Gandhi, so definitely it could turn out to be biased in deciding upon the petition of mercy.

Article 72 and 161 have been incorporated in the Constitution as the de jure head is considered impartial but exercising this power on aid and advice of the Council of Ministers questions the impartiality of this power.

 

HISTORICAL BACKGROUND OF PARDONING POWER:

The constitutional right to pardon in India must be studied in light of the historical development of the pardon and the goal sought by granting this power to the head of state.

This project aims to explore deeper into the theoretical realm of pardon or clemency as it is frequently referred to.

Around 403 B.C. in ancient Rome, a procedure called “Adeia” was used, a kind of democratic pardon for individuals like athletes and orators and others who wielded considerable influence and were successful in securing at least 6000 people to vote in secret to give their consent. Even though executive privilege was not the source of this pardon power, the ancient concept of 'Adeia' can still be compared to the modern idea of pardon that frequently incorporates the public opinion for a person requesting clemency into the decision-making process.

 

Instead of executing a whole army of transgressors, the Romans would execute every tenth guilty troop member, a practice akin to the power of forgiveness in ancient Rome. Because of the political nature of this activity, it isn’t easy to draw similarities between this practice and the modern practice because it is not apparent if kindness was the intended motive. However, such an act has the same effect as pardoning convicted criminals in the modern era, in which a person has been convicted, but the punishment has not been carried out.

 

Despite the above discussion and several precedents of awarding clemency by the Romans, the Indian Constitution's concept of pardon most likely originated from the British practice of granting amnesty itself. The monarch's prerogative to grant clemency has historically been exercised on the advice of the Secretary of State for the Home Department. As a result of this tradition, people believe that the sovereign has the authority to use their power solely because they are acting out of goodwill toward God. Unlike in Britain, India's constitution recognizes the President as the nation's chief executive, which is why the ability to grant pardons has been delegated to him and state governors, who function in a capacity similar to that of the President at the state level.

 

The English notion of pardon was also borrowed by the United States Constitution, which gave the President of the United States the power to pardon under Section 2, Clause 1. The United States Supreme Court has stated several times in the case of “United States v. Wilson” that the term "pardon" should have the same meaning under the United States Constitution as it did in England.

 

From British Constitution, India too borrowed the pardoning power. Section 295 of the Government of India Act, 1935, which did not limit the Sovereign's jurisdiction, became the law of pardon from 1935 onwards. The Government of India Act, 1935 did not contain a provision corresponding to Article 161 of the Constitution.

 

The power of the Presidential Pardon is found in Article 72 of the Indian Constitution. According to Article 72, the President can give pardons, reprieves, respites, or remissions of a penalty and suspend, remit, or commute the sentence of anyone convicted of a crime. The Governor of a state has a similar power under Article 161 of the Indian Constitution. In addition to these constitutional rights, Sections 432, 433, 433A, 434, and 435 of the Criminal Procedure Code of 1973 provide for pardon. Sections 54 and 55 of the IPC give the relevant government the power to commute a death sentence or a life sentence as stated therein.

 

CLEMENCY IN VARIOUS COUNTRIES:

Under the American Constitution, the President has the power to grant reprieves or pardons under Article 2. However, no pardon is available in the case of impeachment. The pardoning power includes the ability to remit fines, penalties, and even any kind of forfeitures except when money was covered into the treasury or paid to the informer.

 

In the United Kingdom, the monarch has the power to grant a pardon to any conviction. However, this power can be exercised with the aid & advice of the Council of Ministers. In the United Kingdom, the power to pardon may be absolute or conditional. In conditional pardon, the grantee must perform certain acts or avoid certain acts to fulfill the condition to obtain the order.

 

In Canada, there is a “National Parole Board” under the “Criminal Records Act,” which considers all the clemency petitions lying before it. There the federal has the power to award compassion to any individual who has been convicted of a criminal offense. The pardon here can be unrestricted or maybe conditional.

 

NATURE OF CLEMENCY:

Judiciary has interpreted the nature & extent of pardoning power differently in different countries.

In “Biddle v. Perovich”,[7] Justice Oliver Wendell Holmes said, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of our constitutional scheme. When granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment fixed.”

Justice Fields in “Ex Parte Garland”[8] said, “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt so that in the eyes of the law, the offender is as innocent as if he had never committed the offense.”

Chief Justice Taft stated in “Ex Parte Philip Grossman,” “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law. The administration of justice by the Courts is not necessarily always wise or certainly considerate of circumstances that may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular Governments, as well as in monarchies, to vest in some other authority than the Court’s power to ameliorate or avoid particular criminal judgments.”

In “Hoffa versus Saxbe” 1974[9]it was held by the Court that “certain curtailment or restrictions imposed by the Constitution on the pardoning power of the President are not unconstitutional.”

In “Burdick v. the United States,”[10] it was held by the Court that the offender’s refusal to abide by the imposition of condition to testify to get a pardon, which might lead to self-incrimination, is not a ground for his mercy petition to be rejected.

 

In the United Kingdom, the nature and extent of the clemency power have been interpreted by the judiciary in the following cases:

In “Thomas v. Sorrel”,[11] the Court applied the maxim “non potest rex gratiam facere cum injuria et damno aliorum,” that is to say, “the king cannot confer a favor on one man to the injury and damage of others.”

In the case of India, the nature & extent of clemency power were discussed in various cases, as in “Kehar Singh vs. Union of India”,[12] the Court came up with the justification for the existence of “clemency power. It recognized that even the “supremely talented legal minds” can be fallible. There needs to be the presence of higher authority with powers to rectify the errors and “scrutinize the validity of the threatened denial of life or the continued denial of personal liberty.”

In “Ranga-Billa case,”[13] the Apex Court held that the president has the power to commute any sentence imposed by a court of law interlace a punishment. The apex court also held that the case needs to be appropriate. The need to ascertain whether the case falls under the appropriate one to be awarded the pardon as confirmed under articles 72 and 161 of the Indian constitution depends upon the facts and circumstances of each case. The court held that the clemency is a salutary principle so that a man in prison needs no cruel punishment, unjust punishment, or disproportionate punishment as it is terrible for the person himself hand also “is a useless piece of cruelty, economically wasteful, and source of loss to the community.”

PURPOSE OF PARDONING POWER:

Multiple views discuss the grounds behind granting a pardon to the accused. The Hegelian theory advocates “that pardons are justified only when they are justice-enhancing”. This view considers the harsh nature of the sentence, or the wrong sentence awarded. This view asserts more of justice being served as the larger perspective than just punishing the accused. The Hegelian idea may be linked to the retributivist school of thought, which believes that a pardon can be justified as an extrajudicial corrective measure to correct the system’s failure. In contrast to the retributivist theory, there is a rehabilitation and redemption school of thought that considers the “post-conviction achievement of the accused and justification of pardon when the goal is justice neutral.”

The modern practice of granting clemency reflects a combination of both retributivist and redemptive philosophies, as pardon may be given in both situations of justice-enhancing and justice-neutral measures.

 

In “Kehar Singh versus Union of India”, the then Chief Justice of India CJ Pathak stated that while granting pardon, considering the Right to life and personal liberty given by the Indian Constitution under article 21 is extremely important. He further asserted that “to err is human and judicial error cannot be precluded due to human fallibility, recourse from the erroneous judgment has been provided in the Constitution of India in the form of the executive power to pardon.” The Supreme Court accepted the principle of pardoning based on “reasons of state” where it was stated that there are certain things that concur to the reasons of state which is not the concern of the judiciary while arriving at any decision, promotion of the welfare of the general public or recognition of the need for the amnesty concerning the contributions that turn to be positive contributions from the accused after conviction is decision-based on a policy that only the executive is best placed to consider.

 

In “Re Maddela Yera Channugadu & others,”[14] the government argued that when all the prisoners are released in the state of Andhra Pradesh, it was meant to protect the prisoners from the perpetration of injustice. The Court also found the validity of the government’s order as a pardon can be awarded at any time, which is in very much accord with Sec2(2) of the American Constitution.

 

 

Law Commission of India in the 1970s stressed that there are factors that demand the exercise of the pardoning power from the executive. The elements are that there might be a situation where “specific facts are not placed before the Court or facts are placed but not in the proper manner; facts that get disclosed after the sentence has been passed, or events that developed or arose post-conviction.”

 

SCOPE OF CLEMENCY POWER:

The clemency power is subject to judicial review like any other executive function. In “Maru Ram vs. Union of India,”[15] the power exercised by the executive about compassion needs to be checked if it seems to be abused. Judiciary needs to intervene when there is an abuse of the capacity for political leverage and intentions are arbitrary and mala fide. The judiciary can do this check through judicial review.

 

It was again reiterated in “Kehar Singh vs. Union of India”, where it was held by the Court that “the exercise of executive prerogative is subject to judicial review.”

In “Epuru Sudhakar Case,”[16] the Apex Court held that the availability of the pardoning power is there in the Constitution to rule out any arbitrariness in the justice delivery system. But, if the exercise of this power is arbitrary, unreasonable, irrational, or mala fide and any discrimination on any or more than one ground of religion, race, caste, creed, or even political gain attract the provision of judicial review.

 

In the “State of Rajasthan vs. Union of India,”[17] it was held by the Apex Court that whenever it is to be ascertained whether any authority has acted upon their power within the set limits or boundaries given under the Constitution, then it must be decided by the Courts. The judiciary is entrusted with the ability to interpret the Constitution and act as custodian of the Fundamental Rights.

 

In “Mansukhlal Vithaldas Chauhan v. the State of Gujarat,”[18] the Court held that it is the function of the Court to see the legality of the executive discretion of clemency based on whether there was an exceeding of the conferred power, whether any error of law crept in a while making decisions or whether any violation or breach of the principles of natural justice occurred while deciding the mercy petition, whether there was unreasonableness or abuse of power while awarding or rejecting the clemency. The Court further clarified that for reviewing the clemency exercised in any case, the work of the Court is not as the “Court of Appeal,” but its job is to examine how the pardoning power had been exercised and to check if intentions are mala fide.

 

The scope of the clemency power is that it is not the personal satisfaction of the President or the Governor, rather it is the Council of Ministers on whose aid and advice the President and Governor have to function as given under Art 74 and Art 163.

 

In “Samsher Singh vs. the State of Punjab”,[19] it was observed by the Court that the satisfaction of the President or the Governor is not his personal satisfaction, rather he is bound by the aid & advice of the Council of Ministers, and he accepts or rejects mercy petitions based on such advice.

In “Maru Ram vs. Union of India”, it was held by the court that the decision on mercy petition is the decision of the Council of the Ministers who according to Article 74 of the Indian constitution render advice to the President and under Article 163 aid and advice Governor at the State level. C.J. Pathak while citing Ex parte William Wells, observed and stated that the executive prerogative power of clemency may be subjected to judicial review when the “circumstances of any case disclose such uncertainties as made it doubtful if there should have been a conviction of the criminal, or when they are such to show that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice.”

“In Dhananjay Chatterjee v. the State of West Bengal,”[20] the Apex Court again reiterated that the advice of the appropriate government that is Central and State government as the case may be, binds the President and the Governor respectively in deciding the mercy petition.

Former President of India Smt Pratibha Singh Patil stated in a press release that the decision of the President on clemency is the decision of the Council of Ministers. Thus, we see that the clemency petition acceptance or rejection it's not the prerogative of the President or of the Governor as the case may be, rather the council of the ministers for the cabinet decides on the issue taking into account various factors.

 

INSTANCES WHERE CLEMENCY EXERCISED RECENTLY:

Akshaya Kumar, one of the men accused of the Nirbhaya gang-rape case filed his first mercy petition on Jan 29, 2020 which got rejected within two days. He again filed a second mercy petition subsequently which too was rejected by the President. He challenged the rejection of his petition before the Apex Court on the ground that rejection was influenced. [21]After the rejection of the mercy petition and the Court rejected the challenge to the mercy petition decision. After the time frame of 14 days as mentioned in the “Shatrughan Chauhan case”, all the 4 accused in the Nirbhaya gang-rape case were hanged.

 

President R. N. Kovind rejected the mercy petition of Jagat Rai,[22] the person accused and convicted of killing five children and a woman while they were sleeping.

 

In Shabnam vs. the State of U.P.[23], the accused with her boyfriend killed 8 members of her family. She was awarded the death penalty; her mercy petition was not considered by both the Governor of U.P. and the President of India. Her 12-year-old son has again set in motion another mercy petition with the President and the convicted led another mercy petition with the Governor for commutation. If mercy petitions are rejected, then she will be the first woman to be awarded the death penalty in 75 years of independence.

 

The 25-year-old Pakistani terrorist and nine other fellows from Lashkar-e-Taiba who orchestrated the 26/11 Mumbai attack, among them the lone surviving terrorist Ajmal Kasab[24] was given capital punishment. After this, he went on to file a clemency petition which got rejected, and then he was hanged to death.

 

The then President P. Mukherjee showed no mercy to the 1993 serial blast convict Yakub Memon,[25] whose 12 coordinated blasts killed 257 and injured over 700. His mercy petition was rejected by the Governor of the state of Maharashtra before. Yakub Memon had pleaded mercy on the ground that he was suffering from schizophrenia and, he already had served nearly 20 years in prison, which is more than the requisite period of 14 years. Although his plea was rejected, and he was executed on July 30, 2015.

 

COMPARISON BETWEEN PRESIDENT & GOVERNOR CLEMENCY POWER IN INDIA:

Article 72 of the Indian constitution grant the power of amnesty into the President, while under Article161 of the Indian constitution on to the Governor. According to Article 74 the President has to work on the advice of the Council of Ministers at the Centre, similarly, according to Article 163, the Governor has to work according to the Council of Ministers at the State. Thus, the clemency power lies with the executive which is the appropriate government that directs the President and the Governor to decide on the clemency in appropriate cases.

 

However, there are certain distinction between the President and Governor clemency power where when it is the pardoning “in case of death penalty the power lies only with the President,” similarly “in case of court-martial the power lies with the President.” The President can grant pardon pan India while the Governor has to take into account territorial jurisdiction of the State where the mercy petition arises which is generally the “place of the commission of the crime.”

The recent observation by Supreme Court where the court asked the centre the ground for not releasing the “Rajiv Gandhi case convict after serving 36 years in prison.”[26] It raises a different issue altogether as stated by Supreme Court that the people who had served in jail for a lesser period got outside the jail but the Rajiv Gandhi assassins still language in jail after serving for 36 years. In this case, the Tamil Nadu Governor put forward the decision of the state cabinet that directed to release the convict to the President and so the question of federal structure arose. The centre answered that since the case is related to the death penalty, so the competent authority is the President and not the Governor but not taking any decision timely question the whole exercise of clemency.

 

The Maharashtra Governor C. Vidyasagar Rao at the time of the filing of the mercy petition by Yakub Memon[27] rejected his plea. The serial bomb blast convict who caused the death and injury to numerous innocent people then again applied for a mercy petition before the President, when the then President Mr. Pranab Mukherjee rejected his petition. It was observed while rejecting the petition that the clemency given for such act would be a “travesty to justice.”

Supreme Court in 2021[28] held that the power of the Governor overrides Sec 433A of CrPC, 1973 when it held that even when 14 years have not been served by the convicts including the death row convicts, he can be pardoned by the Governor.

 

CLEMENCY STATISTICS IN INDIA:

There is no uniformity in rejecting or awarding the clemency by the executive. There is no such a specific guideline or timeline for a mercy petition must be rejected or accepted and so no such consistency is found even when the same kind of circumstances and the fact of the case arise can be found while deciding the mercy petition. The only thing which we find is the less number of the cases going for the mercy post “Bachchan Singh & Machchi Singh judgment” as the judiciary itself came with the rule that the death sentence becomes an exception and the life imprisonment becomes the rule. So ultimately led to a lesser number of capital punishments awarded by the judiciary itself and so a lesser number of the mercy petition regarding the death penalty went for pardon or commutation of the death sentence.

 

While commutations accounted for 24% of the decisions in the first few years after India got independence, these accounted for 29% for the decade spanning 1955-1964. The least percentage of commutations (8.9%) was in the period 1985-1994 during the Presidential tenure of Shri R. Venkataraman. He rejected as many as 44 mercy petitions. This percentage rose to 43.8% during 2006-2015 primarily because of the commutations in as much as 19 in number by Smt. Prathiba Patil.

 

Mercy Petitions Adjudged Each Decade[29]

[30]

 

Thus, from the above chart, it is clear that there is no uniformity and consistency in deciding the mercy petition.

 

 

 

 

CLEMENCY PETITIONS INTERNATIONALLY:

In the USA, the statistics of the clemency petitions pending rejected and awarded before the current U.S. President have been stated below:

JOSEPH R. BIDEN

Fiscal Year	Petitions Pending*		Petitions Pending End of Reporting Month		Petitions Received		Petitions Granted			Petitions Denied		Petitions Closed Without Presidential Action
	P	C	P	C	P	C	P	C	R	P	C	P	C
2021(8.5 months)	3,211	11,804	3,339	13,629	191	2,952	0	0	0	0	0	63	1,128
2022 (7 months)	3,339	13,629	3,458	14,773	144	2,605	3	76	0	0	0	22	1,386
Total (15.5 months)					335	5,557	3	76	0	0	0	85	2,514

Source: Department of Justice, USA

 

In the UK the pardoning rates are as follows:

We come across the statistics of clemency petitions in the United Kingdom after going through the reports in the offenders’ Home Office, Criminal Entry Books.[31] When we compare the rate of the award of the pardon, we find that the rates are lower in London when compared with the rest of England & Wales. As seen from the statistics in the year 1760-1775, the rate of pardon given in capital punishment cases was the lowest in London and it stood at 52%. While the rates of the pardon were 85% or more in England & Wales. The reason for such a scenario was because of the stringent policies practiced by London when compared to rest of England & Wales. For example, between 1760 and 1775, 47 percent of burglars condemned to death in London were later pardoned, compared to 89 percent in counties on the outskirts of England and Wales.

Clemency Statistics in Canada:

In the reporting in the year 2014-2015, 94 % of the clemency petitions were accepted, and only 4% were rejected by the National Parole Board under the Criminal Records Act in Canada.

 

CONCLUSION AND SUGGESTIONS:

The most important thing which needs to be taken into account is that the mercy power has been bestowed on President and Governor at the center and at the state level. There is a reason for doing so by the constitutional makers, the reason that the President and the Governor that is the de jure head are considered to be impartial. However, the decision of the mercy petition on the basis of aid & advice of the Council of Ministers renders this impartiality take a back seat. There are high chances of the biasness in deciding a clemency petition as observed in the “Kehar Singh case” popularly known as the “Indira Gandhi assassination case” as well as in the “Dhananjay Chatterjee case”.

 

The decision of the clemency petition must be taken up by the President and Governor after applying his mind. He must be able to distinguish between the cases which need the consultation and coordination with the Council of Ministers for example the terrorism or waging war against the State cases as the home ministry is responsible for the maintenance of law and so will be the best authority to guide on the mercy petition related to the offenses. While, when the business of the ruling party can cause the decision of the mercy petition to take a certain course which is not warranted justice delivery system and so the President, in that case, should apply his mind in deciding the mercy petition. This will ensure the impartiality of the disposal of the petition and remove any kind of arbitrariness, unreasonableness or malafide intention for the political mileage.

One of the purposes of the clemency petition is taking into account certain factors which cannot be considered by the judiciary. The judiciary decides the cases on the basis of the fact and circumstances of the case and all the evidence produced before it. However, there may be certain situations that occur after the sentence gets awarded that as the post-conviction correction in the convict. Reformation is one of the aims of the criminal justice system currently and this can be done after the passing of the sentence by the judiciary, the executive itself.

 

Clemency is used for a broader picture of public welfare. The President or the Governor as the case, may apply self-restraint while deciding the mercy petition. There is another objective of the criminal justice system, which is deterrent in nature. This deterrent nature puts a check on the prospective offenders from committing the crime. The awarding of clemency will deter the deterrent effect itself.

The President, while granting or rejecting the mercy petition, must give the detail for doing so. It keeps the faith in the judiciary and in the democratic head of the country alive.

 

There must always be the timely disposal of the mercy petition. The delay in deciding the mercy petition causes mental agony in the convicted person. The Supreme Court in 2020 sent notice to the center in response to a plea. In the absence of any time limit for the disposal of the mercy petition and the undue delay in deciding the cases give rise to public unrest and create doubt in the mind of the public at large. In fact, the convict many times had already taken the benefit of the undue delay of the disposal of the mercy petition and got the death penalty converted into life imprisonment. This leads to a kind of the second victimization of the victims and their families.

 

Furthermore, both the judiciary and executive should be aware of the domain of each other jurisdiction and apply self-regulation to check any arbitrary interference into the other’s domain. Any undue interference by one into the other’s rights and duties will erode the faith available in that authority. The disciplined exercise of one’s power will ensure that justice is delivered. Along with this, there should not be any inordinate delay by the judiciary or the executive in deciding the clemency petition so that the victim and the society have faith in the criminal justice system as well as a detrimental effect on the mental state of the convict can be done away with. This damaging effect has been reported even in project 39A death-worthy report of NLU, Delhi.

 

Thus, the question that if the clemency has been effective in providing justice or correcting any kind of sentence in which is in the form of a wrong sentence, unjust sentence, or disproportionate sentence is yes in many instances, it proved to be so as the clemency takes the circumstances, the public welfare, the post-conviction behavior of the convict and so decides the matter and serve the purpose of correcting the disproportionate & unjust sentence. When the executive goes through the merits of the case and determines the clemency, then it is able to correct the wrong sentence awarded. But, in the absence of the time limit in deciding the clemency keeps the convict in a state of uncertainty about whether he will be able to live a normal life

 

 

---

[1] Mohinder Singh v. the State of Punjab [Criminal Appeal No. 2182 of 2010]

[2] Indian Const. art. 72.

[3] Indian Const. art. 161.

[4] Indian Const. art. 21.

[5] Project 39A at National Law University Delhi Releases “Deathworthy: A Mental Health Perspective Of the Death Penalty” Oct 22, 2021, available at https://www.livelaw.in/news-updates/project-39-a-releases-deathwrthy-a-mental-health-perspective-of-death-penalty-nlu-delhi-184137 (last accessed on January 10. 2023).

[6] India Const. art. 74.

[7] Biddle v Perovich 274 US 480 (1927).

[8] Ex Parte Garland 71 US (4 Wall) 333 (1867).

[9] In Hoffa versus Saxbe 378 F. Supp. 1221 (D.D.C. 1974).

[10] Burdick v. the United States 236 U.S. 79 (1915).

[11] Thomas v. Sorrel (1673) Vaugh 330 at 343.

[12] Kehar Singh vs. Union of India (1984) 4 SCC 693.

[13] Kuljeet Singh v. Lt. Governor (1981) 1 SCC 107.

[14] Re Maddela Yera Channugadu & others 1954 CriLJ 1370.

[15] Maru Ram vs Union of India 1981 1 SCC 107

[16] Epuru Sudhakar vs Govt of A.P. 2006 8 SCC 161

[17]  State of Rajasthan vs Union of India 1977 INSC 145

[18] Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622

[19] Samsher Singh & Anr vs State of Punjab, 1974 2 SCC 831

[20] Dhananjoy Chatterjee vs State of W.B. 1994 SCR(1) 37.

[21] Nirbhaya: SC dismisses Akshay’s plea challenging rejection of his second mercy petition, 19 Mar 2020, available at https://m.economictimes.com/news/politics-and-nation/nirbhaya-sc-dismisses-akshays-plea-challenging-rejection-of-his-second-mercy-petition/articleshow/74712166.cms (last accessed on January 10, 2023).

[22] Mercy plea rejected by President, what next for a death-row convict? May 31, 2018, available at https://indianexpress.com/article/explained/ram-nath-kovind-what-is-mercy-petition-death-sentence-supreme-court-5197771/ (last accessed on June 5, 2022).

 

[23] Explained: Who is Shabnam, the first woman who could be hanged since 1947? Mar4, 2021, available at https://www.google.com/amp/s/indianexpress.com/article/explained/explained-the-case-of-amrohas-shabnam-the-first-woman-likely-to-hanged-after-independence-7195194/lite/ (last accessed on January 10, 2023).

[24] Ajmal Kasab hanged, buried at Pune’s Yerwada jail, Nov 21, 2012, available at https://www.indiatoday.in/india/story/ajmal-kasab-hanged-after-president-rejected-his-mercy-plea-122059-2012-11-21 (last accessed n January 10, 2023).

[25] President rejects Yakub Memon’s mercy petition, Dec 6, 2021, available at https://www.thehindubusinessline.com/news/president-rejects-yakub-memons-mercy-petition/article7477737.ece (last accessed on January 10, 2023).

                                                                                      

[26] “Why can’t Rajiv Gandhi case convict be released after serving 36 years in prison: SC to Centre,” April 28, 2022 available at https://m.ecoonomictimes.com/news/india/why-can’t-rajiv-gandhi-case-convict-be-released-after-serving-36-years-in-prison-sc-to-centre/articleshow/91134066.cms (last accessed on June 6, 2022).

[27] Maharashtra Governor rejects Yakub Memon’s mercy plea, July 2, 2015, available at https://indianexpress.com/article/india/india-others/maharashtra-governor-rejects-yakub-memons-mercy-plea/ (last accessed on January 10, 2023)

 

[28] Governors can pardon prisoners, including death row ones: Supreme Court, Aug 4, 2021, available at, https://www.thehindu.com/news/national/governors-can-pardon-prisoners-including-death-row-ones-supreme-court/article35711818.ece (last accessed on January 10, 2023).

 

[29] President Mukherjee Rejects 92% Of Mercy Petitions, Aug 6, 2015, available at https://www.indiaspend.com/president-mukherjee-rejects-92-of-mercy-petitions-81521/ last accessed on January 10, 2023)

 

[31] The Pardoning, available at https://www.digitalpanopticon.org/Pardoning (last accessed on January 10, 2023).