The journey of a mercy plea

Of the 28 mercy petitions pending with the Central Government, 21 cases are pending with the President's Secretariat while seven are with the Union Ministry of Home Affairs (MHA). Article 72 of the Constitution empowers the President to grant pardon, suspend and remit death sentences and commute the death sentence of convicts on death row. Maneesh Chhibber explains how the entire mercy procedure works.

Who can file a mercy petition on behalf of a convict on death row?

Anybody, including foreign nationals, can send a mercy petition with regard to such a person to the President's Office or the MHA. Mercy pleas can also be sent to the Governors, who forward them to the MHA for necessary action. A convict can file a mercy plea from jail either through prison officials or through his lawyer or even his family. Mercy petitions can also be emailed to the Home Ministry or the President's Secretariat.

Is there a time-frame within which the President has to dispose of a mercy petition?

No. The Constitution doesn't have any maximum time-limit within which a mercy petition has to be decided. There have been instances of mercy petitions lying with the President for over a decade without any decision being taken. The MHA can't ask the President to speed up the process.

Why is there such a long list of pending mercy petitions?

The reason for the pile-up is that successive Presidents have dithered in deciding pending mercy petitions. Most of the pending cases —- 28 in number as of today —- in the Rashtrapati Bhawan were left undecided by the current President Pratibha Patil's predecessor, A P J Abdul Kalam. During his five-year stay in the Rashtrapati Bhawan, Kalam decided only one mercy plea —rejecting the plea of rapist Dhananjoy Chatterjee, who was thereafter hanged. Similarly, Kalam's predecessor K R Narayanan also didn't clear any mercy petition. The only President in recent times who diligently performed this Constitutional duty was Shankar Dayal Sharma.

What is the view of President Pratibha Patil on mercy petitions?

Like her predecessor, President Patil is not keen on clearing any pending case. She is said to be of the view that since most of the pending mercy petitions were left by her predecessor, she can't be pushed to clear the pile. However, it is not known whether she supports or opposes the death penalty.

Can the President disregard the recommendations of the MHA in mercy petition cases?

No. Under the settled law, including judgments of the Supreme Court, the President is bound by the advice of the Union council of ministers while deciding mercy petitions. In a legal opinion, the previous Attorney General said that the recommendation of the MHA can be accepted as the view of the entire council of ministers on the subject because under the Transaction of Business Rules of the Government of India, the MHA is the Ministry charged with making recommendations with regard to mercy petitions by those on death row. In one case, then President Kalam returned the file of a convict, saying he didn't agree with the recommendation of the MHA with regard to that particular case. He was of the view that the convict deserved to get his death sentence commuted to life without parole. However, the MHA refused to abide by his view.

Can the Central Government fast-track any particular cases?

While a lot has been said and written about how the Centre plans to jump the queue and fast-track the hanging of Pakistani gunman Ajmal Kasab, the possibility of such a thing happening is still not known. A lot would depend on whether the President agrees to decide Kasab's case, if and when it is filed, out of the pending cases and decided the same without deciding the other cases.

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