In the temple of justice, a lady cries
Help me out, Satan killed my child
O, Lord! Why such hardships?
Hang this man, ordered your Lordship.
Shrewd Satan supplicates the King
You have my Mercy, don't you worry my child.

Mercy petition has been one of the most debated and stressed topics in the arena of law and justice at domestic and international levels. Be it the House of Commons or a convention of the United Nations Human Rights Commission, the discussions on the said topic are never-ending. This article would be dealing with the Indian point of view covering all the relevant points at both domestic and international levels in an attempt to bring light to the unilluminated brains of the State. At a time when most of the countries have already abolished the death penalty or are under a moratorium, India is on the verge of seeking reform on Mercy petition as well as capital punishment.

Mercy petition and Capital punishment cohabitate each other or it can be said that the need for knocking the doors of the President arises only after the convict has been sentenced to the death penalty. Although we have celebrated 73rd independence day recently, still there are a plethora of hurdles in the path of the  correct applicability of mercy petition and capital punishment . The decades' long delay and inefficiency in deciding the clemency cases seem to be the most lamenting part of the executive. The debilitating effects of this complex phenomenon imposed upon the prisoners that can be only called a living death are far beyond the maximum suffering permitted by Article 21[1]. As per the data revealed by the 262nd report of the Law Commission, 140 countries have already abolished the death penalty. Still, some intellectuals are defending the retributive theory of punishment and forgetting the words of Gandhiji,  an eye for an eye makes world blind . I sincerely hope that this article would contribute to a more rational, principled and informed debate on the constitutionality of Article 72 and 161 of the constitution of India and the abolition of the death penalty.

Historical background:
In India, the clemency powers are given to the President of India as well as the Governor of the states through Article 72 and 161 of the Constitution of India 1950 respectively. The said article authorizes the executive to grant Pardon, commute, suspend, reprieve, respite and to remit the capital punishment even if sentenced by the highest court of the land. The brainchild behind the insertion of article 62 is bonafide in nature which gives a death row convict a chance to cross-check any errors committed by the Supreme Court. The data, however, is not so happening, the MHA's data show that Presidents, with the exceptions of Mr. Rajendra Prasad and Smt. Pratibha Patil has dealt with mercy petitions largely without mercy.

According to information released by the government under the RTI Act, of the 77 mercy pleas decided by Presidents between 1991 and 2010, 69 were rejected. Only 8 — about 10% — of those who sought mercy were spared the gallows. R Venkataraman (1987-1992) rejected 44 mercy pleas, the most by any President. [2]

The current President Mr. Ram Nath Kovind had recently rejected a mercy petition, his first, moved by Jagat Rai of Bihar who has been sentenced to death for killing six members of a family over a buffalo theft. Since India became republic till 1982, a period that saw six Presidents, only one mercy petition was rejected. During 1982-97, three Presidents rejected 93 mercy petitions and commuted seven sentences. Unfortunately, no pleas were decided during the tenure of President K R Narayanan (1997-2002), after which A P J Abdul Kalam (2002-2007) decided on two pleas, rejecting one and granting the other out of total 24 petitions.

The most commendable work was shown by Smt. Pratibha Patil, the first woman President of India (2007-2012) commuted 34 mercy pleas and rejected only five. After her, the Finance Minister turned President Pranab Mukherjee (2012-17), on the other hand, rejected 31 of the 33 mercy pleas he decided. The president does not decide on the clemency cases on his own.

He is advised by the council of ministers under article 74 and 163 even though he is not bound to act on their suggestions. The interference of the legislature with the executive on deciding clemency cases as per their whims and fancies is a very expected thing in a country where the post of the President is de jure and not de facto. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor-General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers having a narrow area of power.

Although there have been exceptional cases like Rajendra Prasad and Mrs. Patil, the Presidents have dealt mercy petitions without mercy. The President is not bound by any time limit to decide on the mercy petition which is why there have been cases of inefficiency and procrastination. Dr. A.P.J. Abdul Kalam at the end of five year's term had left behind over two dozen cases, having decided only two. The following table shows the record of mercy petitions disclosed by the Presidents to date.
 

As you can see that out of the 440 cases, 308 cases have been accepted which means that the sentencing done by the apex court had been overturned. But it is important to note that just because the imposition of the death penalty in such a large number of cases has been overruled, does not mean ‘that the system is functioning well. In most of the cases, both the lower courts have been in error. Such errors have been corrected only after a long duration in prison, including extended periods on death row. This trauma of being under a sentence of death faced by the convicts is called the  death row phenomenon  which exacts its own mental and physical punishment, even if the person is subsequently spared from gallows.[4]

Solution in abolition:
An early attempt at the abolition of the death penalty took place in pre-independent India when Shri Gaya Prasad Singh attempted to introduce a bill abolishing the death penalty for IPC offenses in 1931. However, this was defeated.[5] Around the same time, in March 1931, following the execution of Bhagat Singh, Sukhdev and Rajguru by the British government, the Congress moved a resolution in its Karachi session, which included a demand for the abolition of the death penalty[6] India's Constituent Assembly Debates between 1947 and 1949 also raised questions around the judge centric nature of the death penalty, arbitrariness in imposition, its discriminatory impact on the people living in poverty and the possibility of error.[7]

The 35th law commission report had recommended the  capital punishment should be retained in the present state of the country .[8] Having considered the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the then-prevailing juncture.

The time has changed now India has seen tremendous growth in educational, financial and social sectors. In 1967, when the 35th Report was presented, only 12 countries had abolished capital punishment for all crimes in all circumstances.[9] Today, 140 countries have abolished the death penalty in law or practice. Further, the number of countries that have remained active retentionists, namely they have executed at least one person in the last ten years, has fallen from 51 in 2007 to 39 (as of April 2014).[10] Dr. Ambedkar was personally in favor of the abolition of the death penalty. He opined to eliminate the death penalty instead of having a provision of appellate power to appeal in cases of capital punishment.

The death penalty should be abolished as it violates Article 14, 19 and 21 of the constitution of India. Since the death sentences extinguish, along with life, all the freedoms guaranteed under Article 19 (1) (a) to (g). it was an unreasonable denial of freedom and not in the interests of the public. Also, the judge centric sentencing or the discretion vested on judges in deciding the imposition of the death penalty is uncontrolled and unguided and thus violates Article 14. Finally, the lack of procedure in deciding the circumstances crucial for choosing between life imprisonment and capital punishment violates Article 21.

Justice P.N. Bhagwati in his dissenting opinion found that the death penalty necessarily arbitrary, discriminatory and capricious. He reasoned that  the death penalty in its actual operation is discriminatory, for it strikes against the poor and deprived sections of the community and the rich and affluent usually escape, from its clutches.[11] Article 6(2) of International covenant of civil and political rights (ICCPR) to which most of the countries are signatories including India, states that the sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant.[12]. In India, on the other hand, the death penalty is awarded for less grievous crimes resulting in no compliance with the Article 51(C) of the Indian Constitution which says that the state shall endeavor to foster international law and treaty obligations in the dealings of organized people with one another.[13]

Conclusions and Recommendations:
# The executive's mercy powers cure defects of arbitrary and erroneous death sentences and provide an additional bulwark against miscarriages of justice. Therefore, cases found unfit for mercy merit capital punishment. Mercy powers are thus a safeguard and necessary precondition for the death penalty.

# The exercise of mercy powers under Article 72 and 161 have failed in acting as the final safeguard against the miscarriage of justice in the imposition of the death sentence. The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive has discharged its mercy powers. When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible.

# The death penalty does not serve the penological goal of deterrence any more than life imprisonment.

# Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of  an eye for an eye, tooth for a tooth  has no place in our constitutionally mediated criminal justice system.

# It is strongly recommended that the death penalty be abolished for all crimes other than terrorism-related offenses and waging war.

# I sincerely hope that the movement towards the abolition of the death penalty will be swift and irreversible.

End-Notes
[1] 2015, Death Penalty, 262nd report of law commission of India,
[2] https://indianexpress.com/article/explained/how-the-president (Web view)
[3] This table is based on archival research and RTI data published on the 262nd law commission report.
[4] See Brandon L. Garrett, The Banality of Wrongful Executions, MICH. L. REV. (2014).
[5] Law Commission of India, 35th Report, 1967, at para 12, available at http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
[6] Special Correspondent, It’s time death penalty is abolished: Aiyar, The Hindu, 7 August 2015, available at http://www.thehindu.com/news/national/its-time-deathpenalty-is-abolished-aiyar/article7509444.ece
[7] See Constituent Assembly Debates on 3 June, 1949, Part II available at http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm
[8] Law Commission of India, 35th Report, 1967, at para 1
[9] Supra8
[10] Roger Hood and Carolyn Hoyle, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 5 (5th ed. 2015).
[11] Bachan Singh v. State of Punjab, 1982 3 SCC 24 (J. Bhagwati, dissenting), at para 81.
[12] Article 6 (2), Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty
[13] Article 51(c) of Constitution of India.