AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 262

B. Nature, Purpose and Scope of Clemency Powers

6.2.1 The State and Central Governments have powers to commute death sentences after their final judicial confirmation. This power, unlike judicial power, is of the widest amplitude and not circumscribed, except that its exercise must be bona fide. Issues often alien and irrelevant to legal adjudicatio.- morality, ethics, public good, and policy consideration.- are intrinsically germane to the exercise of clemency powers.

These powers exist because in appropriate cases the strict requirements of law need to be tempered and departed from to reach a truly just outcome in its widest sense. The executive's powers to commute a death sentence, in other words, exist to remedy deficiencies in the strict application of the law. Therefore, in jurisdictions retaining capital punishment, the proper exercise of mercy powers is of the utmost importance given that human lives depend on it. Every citizen has a right to petition the government to commute any death sentence, since the state's power to take life emanates from the people, and executions are carried out in their name.

6.2.2 Clemency powers of either pardoning an offender or reducing or altering the punishment awarded, For the meaning of pardon, reprieve, respite, etc, see State (Govt. of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121, at para 10, have their provenance in similar powers, which, since time immemorial, have vested in the sovereign. However, their exercise today, in modern democratic states, is not, as it was of yore, a private act of grace, but one of solemn constitutional responsibility. Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, at paras 16-17.

6.2.3 Clemency powers in India are enshrined in the Constitution. Article 72 vests these powers in the President, and Article 161 vests similar powers in the Governors of the States. Article 72 states:

Article 72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain case.- (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offenc.-

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.

(3) Nothing in sub-clause of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State, under any law for the time being in force.

6.2.4 Article 161 states:

Article 161. Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain case.- The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

6.2.5 Neither of these powers are personal to the holders of the office, but are to be exercised (under Articles 74699 and 163700, respectively) on the aid and advice of the Council of Ministers.

699 Article74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

700 Article 163. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

6.2.6 Clemency powers usually come into play after a judicial conviction and sentencing of an offender. In exercise of these clemency powers, the President and Governor are empowered to scrutinize the record of the case and differ with the judicial verdict on the point of guilt or sentence. Even when they do not so differ, they are empowered to exercise their clemency powers to ameliorate hardship, correct error, or to do complete justice in a case by taking into account factors that are outside and beyond the judicial ken.

They are also empowered to look at fresh evidence, which was not placed before the courts. In Kehar Singh v. Union of India, (1989) 1 SCC 204 ('Kehar Singh'), a Constitution Bench (five judges) held as follows:

7. To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence.

The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ.

But, the fallibility of human judgement being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State.

The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context...

10. We are of the view that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record.

The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. and this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him...

It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court.

16. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme. Kehar Singh v. Union of India, (1989) 1 SCC 204, at paras 7, 10 and 16.

6.2.7 Thus, it will be seen that clemency powers, while exercisable for a wide range of considerations and on protean occasions, also function as the final safeguard against possibility of judicial error or miscarriage of justice. This casts a heavy responsibility on those wielding this power and necessitates a full application of mind, scrutiny of judicial records, and wide ranging inquiries in adjudicating a clemency petition, especially one from a prisoner under a judicially confirmed death sentence who is on the very verge of execution.

6.2.8 The Ministry of Home Affairs, Government of India, has drafted the "Procedure Regarding Petitions for Mercy in Death Sentence Cases" to guide State Governments and the prison authorities in dealing with mercy petitions submitted by death sentence prisoners. These rules were summarized by the Supreme Court in Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 ('Shatrughan Chauhan'):

98. The Ministry of Home Affairs, Government of India has detailed procedure regarding handling of petitions for mercy in death sentence cases:

98.1. As per the said procedure, Rule I enables a convict under sentence of death to submit a petition for mercy within seven days after and exclusive of the day on which the Superintendent of Jail informs him of the dismissal by the Supreme Court of his appeal or of his application for special leave to appeal to the Supreme Court.

98.2. Rule II prescribes procedure for submission of petitions. As per this Rule, such petitions shall be addressed to, in the case of the States, to the Governor of the State at the first instance and thereafter to the President of India and in the case of the Union Territories directly to the President of India. As soon as the mercy petition is received, the execution of sentence shall in all cases be postponed pending receipt of orders on the same.

98.3. Rule III states that the petition shall in the first instance, in the case of the States, be sent to the State concerned for consideration and orders of the Governor. If after consideration it is rejected, it shall be forwarded to the Secretary to the Government of India, Ministry of Home Affairs. If it is decided to commute the sentence of death, the petition addressed to the President of India shall be withheld and intimation to that effect shall be sent to the petitioner.

98.4. Rule V states that in all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the Lt. Governor/Chief Commissioner/Administrator or the Government of the State concerned, as the case may be, shall forward such petition, as expeditiously as possible, along with the records of the case and his or its observations in respect of any of the grounds urged in the petition.

98.5. Rule VI mandates that upon receipt of the orders of the President, an acknowledgment shall be sent to the Secretary to the Government of India, Ministry of Home Affairs, immediately in the manner prescribed. In the case of Assam and Andaman and Nicobar Islands, all orders will be communicated by telegraph and the receipt thereof shall be acknowledged by telegraph.

In the case of other States and Union Territories, if the petition is rejected, the orders will be communicated by express letter and receipt thereof shall be acknowledged by express letter. Orders commuting the death sentence will be communicated by express letters, in the case of Delhi and by telegraph in all other cases and receipt thereof shall be acknowledged by express letter or telegraph, as the case may be.

98.6. Rule VIII (a) enables the convict that if there is a change of circumstance or if any new material is available in respect of rejection of his earlier mercy petition, he is free to make fresh application to the President for reconsideration of the earlier order.

99. Specific instructions relating to the duties of Superintendents of Jail in connection with the petitions for mercy for or on behalf of the convicts under sentence of death have been issued:

99.1. Rule I mandates that immediately on receipt of warrant of execution, consequent on the confirmation by the High Court of the sentence of death, the Jail Superintendent shall inform the convict concerned that if he wishes to appeal to the Supreme Court or to make an application for special leave to appeal to the Supreme Court under any of the relevant provisions of the Constitution of India, he/she should do so within the period prescribed in the Supreme Court Rules.

99.2. Rule II makes it clear that, on receipt of the intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal filed by or on behalf of the convict, in case the convict concerned has made no previous petition for mercy, the Jail Superintendent shall forthwith inform him that if he desires to submit a petition for mercy, it should be submitted in writing within seven days of the date of such intimation.

99.3. Rule III says that if the convict submits a petition within the period of seven days prescribed by Rule II, it should be addressed, in the case of the States, to the Governor of the State at the first instance and, thereafter, to the President of India and in the case of the Union Territories, to the President of India. The Superintendent of Jail shall forthwith dispatch it to the Secretary to the State Government in the Department concerned or the Lt. Governor/Chief Commissioner/Administrator, as the case may be, together with a covering letter reporting the date fixed for execution and shall certify that the execution has been stayed pending receipt of the orders of the Government on the petition.

99.4. Rule IV mandates that if the convict submits petition after the period prescribed by Rule II, the Superintendent of Jail shall, at once, forward it to the State Government and at the same time telegraph the substance of it requesting orders whether execution should be postponed stating that pending reply sentence will not be carried out.

100. The above Rules make it clear that at every stage the matter has to be expedited and there cannot be any delay at the instance of the officers, particularly, the Superintendent of Jail, in view of the language used therein as "at once.

101. Apart from the above Rules regarding presentation of mercy petitions and disposal thereof, necessary instructions have been issued for preparation of note to be approved by the Home Minister and for passing appropriate orders by the President of India.

102. The extracts from the Prison Manuals of various States applicable for the disposal of mercy petitions have been placed before us. Every State has a separate Prison Manual which speaks about detailed procedure, receipt placing required materials for approval of the Home Minister and the President for taking decision expeditiously. The Rules also provide steps to be taken by the Superintendent of Jail after the receipt of mercy petition and subsequent action after disposal of the same by the President of India. Almost all the Rules prescribe how the death convicts are to be treated till final decision is taken by the President of India.

103. The elaborate procedure clearly shows that even death convicts have to be treated fairly in the light of Article 21 of the Constitution of India. Nevertheless, it is the claim of all the petitioners herein that all these rules were not adhered to strictly and that is the primary reason for the inordinate delay in disposal of mercy petitions. For illustration, on receipt of mercy petition, the Department concerned has to call for all the records/materials connected with the conviction.

Calling for piecemeal records instead of all the materials connected with the conviction should be deprecated. When the matter is placed before the President, it is incumbent on the part of the Home Ministry to place all the materials such as judgement of the trial court, High Court and the final court viz. Supreme Court as well as any other relevant material connected with the conviction at once and not call for the documents in piecemeal.Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at paras 98-103



Death Penalty Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys