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Polity & Governance
Mahesh

16/06/24 06:18 AM IST

Presidential power to pardon death sentences and its challenges

In News
  • President Droupadi Murmu has rejected the mercy petition of Mohammed Arif alias Ashfaq, a Pakistani national and a member of the Lashkar-e-Taiba who was sentenced to death in the nearly 24-year-old Red Fort attack case.
Clemency powers
  • As per the Constitution, in all cases where a convict has been sentenced to death, both the President and the Governor of the State where the crime has taken place exercise concurrent jurisdiction over mercy petitions.
  • Under Articles 72 and 161, both constitutional authorities have the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence”.
  • However, the President does not exercise this power independently — Article 74 mandates that he or she has to act on the advice of the Council of Ministers.
  • This principle was affirmed by the Supreme Court in Maru Ram v. Union of India (1980) while underscoring that the President cannot exercise his personal discretion while delibertaing upon mercy petitions.
  • Under these provisions, the President and the Governor retain the authority to evaluate the merits of the case independently without being bound by any judicial determination.
  • Additionally, Article 74(2) of the Constitution prohibits any court from enquiring into “the question whether any, and if so what, advice was tendered by Ministers to the President”.
  • This implies that there is no way to scrutinise how a President arrived at a decision unless the Council itself chooses to divulge the recommendation.  
  • Once the death sentence awarded to the convict has been confirmed by the High Court or the Supreme Court, anybody, regardless of nationality, can submit a mercy petition to the Home Department of the concerned State, which then forwards it to the Governor with its advice on whether to accept or reject it.
  • If the Governor declines the petition, it is forwarded, along with all relevant documents, to the Ministry of Home Affairs (MHA).
  • The MHA then sends the petition to the President, with advice on how to act on it.
  • The President can choose to endorse the recommendation or, if he or she disagrees, send the petition back for reconsideration.
  • However, if the same recommendation is reiterated, the President is constitutionally obligated to accept it.
Judicial review
  • The Supreme Court has consistently allowed judicial review of the President’s pardoning powers, but only to a limited extent, to avoid any miscarriage of justice.
  • In Kehar Singh v. Union of India (1988), a Constitution Bench highlighted that the President’s pardoning powers under Article 72 operate distinctly from judicial powers.
  • As a result, the President has the authority to conduct an independent assessment of the evidence on record and even come to a different conclusion from that recorded by the Courts.
  • However, the Bench upheld the judicial review of the President’s decision without delving into the decision’s merits to ensure adherence to procedural requirements and constitutional principles.
  • In 2006, the top Court in Epuru Sudhakar & Another v. Andhra Pradesh elucidated further on the grounds for review by ruling that a decision under Article 72 can be challenged on grounds that
  • it was passed without application of mind;
  • it is mala fide; 
  • it was passed on extraneous or wholly irrelevant considerations; 
  • relevant materials were kept out of consideration; 
  • it suffers from arbitrariness. 
Executive procrastination
  • The Constitution, while mandating that the President must not deviate from the recommendation of the cabinet, says nothing to keep him or her from indefinitely delaying a decision on a mercy petition.
  • This is especially noticeable in cases where the President disagrees with the recommendation of the Council of Ministers.
  • Reports have speculated that former Presidents such as KR Narayan, APJ Abdul Kalam and Pratibha Patil have sat on mercy petitions where they disagreed with the government’s advice.
  • Moreover, former President Pranab Mukherjee is said to have rejected the advice of the government while commuting the death sentence in five cases.
  • However, the Top Court has condemned such Executive procrastination and underscored that it violates the right to life and personal liberty guaranteed under Article 21 of the Constitution.
  • In Shatrughan Chauhan and Anr v. Union of India (2014), the Court ruled that “undue, inordinate and unreasonable delay” in dealing with a mercy petition amounted to torture — a violation of the convict’s fundamental rights and constituted grounds for the commutation of a death sentence to life imprisonment. 
Source- The Hindu

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