Thursday, July 22, 2010

Mercy Petitions in Capital Punishment Cases

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The inordinate delays in deciding Mercy Petitions made to the President of India have rightly raised public concerns about the decision-making process between the President and the Government of India. What follows is an explanation on various aspects as far as the law and procedure are concerned.
Capital Punishment (Death Penalty)

Capital Punishment is accepted and provided for in the criminal jurisprudence of many countries based on two main principles. The first is retributive justice or giving the offender “just deserts” – what is justly deserved for the crime committed and death sentence is awarded where even life sentence is considered insufficient punishment. The punishment needs to be proportional to the crime. The second is the “deterrence rationale” i.e. to act as a deterrent to others to discourage them from committing such crimes.

The Penal Code 1861 (later Indian Penal Code) introduced by the British in India contained provisions for Death Penalty for certain offences. After Independence, the provisions for Death Penalty were retained in our system of criminal jurisprudence after due debate during the framing of the Constitution. IPC provides for capital punishment as an alternative punishment in seven offences. Over time, apart from the IPC, capital punishment has also been provided for specific offences in other State level and special legislations.

Questions have been raised whether capital punishment is against the Constitution of India. The Supreme Court first ruled on the Constitutionality of capital punishment in Jagmohan v. State of UP (1972) even after which the question kept coming up from time to time for consideration by the Courts. Then, in a landmark case of Bachan Singh v. State of Punjab (1982) the Supreme Court by a majority 4:1 judgment held that death penalty under Sec. 302 of IPC is not unconstitutional and is hence valid. At the same time, the real importance of the judgment lies in that it lays down strict principles on the basis of which death sentence may be awarded. The Court said, inter alia, “real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest or rare cases when the alternative option is unquestionably foreclosed.” It is true that there are no fixed rules for determining “rarest of rare” because each case would have its own facts and circumstances to be considered and the courts consequently decide based on these whether the death penalty is justified as the only alternative option.

The provisions of law as well as the judicial pronouncements from time to time have created a rigorous and sensitized framework that seeks to ensure that Capital Punishment is not awarded lightly. In the first instance, the accused is entitled to full and fair access to the judicial process. Every sentence for death penalty by a trial court has to be approved and confirmed by the High Court as a matter of course. Even after an accused is found guilty, there is an opportunity to argue on the quantum of punishment. In terms of Sec. 354(3) of the Cr.P.C., in the case of sentence of death, the judgment is required to state the special reasons (interpreted to mean “exceptional reasons”) for the sentence. The convicted person has the opportunity to appeal against the decision up to the highest Court, the Supreme Court, by way of appeal, review or curative petitions, in accordance with the scheme of the judicial system.

The Courts, including the Supreme Court itself have to remain within the principles formulated by them including the rules for consideration of aggravating and mitigating circumstances while awarding death sentence. The diligent application of these principles means that the death penalty is awarded in fewer rather than larger number of cases. At the end of 2007, there were 308 convicts in the country’s jails facing capital punishment against 63828 facing Life Imprisonment.

And as a final safeguard, a convict whose death penalty is eventually confirmed by the judicial system is entitled to Petition the President under Article 72 of the Constitution or the Governor of a State under Article 161 of the Constitution requesting for exercise of the power of mercy or clemency.

In sum, capital punishment remains a part of our criminal jurisprudence and is constitutionally valid. Adequate safeguards are provided in the justice system and strengthened under the Constitution (i) to ensure that it is used only when considered absolutely justified and (ii) to prevent any potential miscarriage of justice, by making the constitutional provisions for mercy petitions.

While several countries might have done away with death penalty, each country and society has to take a view based on its own situation and special circumstances. It is just not possible to impose or adopt a particular philosophy on punishment for aggravated crimes in disregard of the specific situation of a country. Indeed, this form of punishment continues in many other countries including, most notably, USA and China. In India, considering a huge population and a not insignificant incidence of violent crimes (32766 reported murder cases and 28598 cases of attempts to commit murder in 2008) a strong deterrent needs to exist for exceptionally aggravated crimes. The accelerated trend towards highly materialistic lifestyles may also reflect in an increase in crime including violent crimes. More importantly, looking to the increasing dangers posed by the growth of drug related offences and terrorism and extremism in the region, the justification for retaining capital punishment is now more rather than less than before.

As far as the actual numbers of death penalty sentences carried out are concerned, since 1995 till June 2010, only one sentence has been carried out India (in 2004) compared to, for example, 960 in USA from 1995 to 30th June 2010, of which 29 have been carried out in first six months of 2010. In China, in 2008 alone, 1718 sentences were carried out as per Amnesty estimates.

The Power of Mercy

The Power of pardon, mercy or clemency has been a part of the system of jurisprudence of most countries since the olden times. While in earlier times, it was exercised as a royal prerogative, in modern day, the power is generally vested in the Executive at the highest level and is meant “to be exercised as an act of humanity and grace in proper cases” (American Jurisprudence 2d). It is meant as a remedy to smoothen out occasional imperfections, undue harshness or evident mistakes in the operation of criminal law.

This power is a fail-safe in the justice system and is especially essential in death penalty cases. It is a plenary power, absolute and discretionary but its sole purpose is to prevent injustice. “ is not a private act of grace from an individual happening to possess power” but is such that “public welfare will be better served by inflicting less than what the judgment fixed” (Justice Holmes, US Supreme Court in Biddle v. Perovich).

The existence of mercy power in the context of capital punishment cases becomes more relevant where the criminal jurisprudence provides for mandatory death penalties in certain situations. Where the judiciary does not have the flexibility to award a lesser sentence, it has to beat all the accused with the same stick and it is in such cases where the play of executive mercy is very pertinent and relevant. The process of awarding death penalty is likely to become stricter at the same time that in the context of an increasingly hostile environment, crimes which carry the death penalty are bound to increase, e.g. terrorist and drug related crimes.

In India, this power is specifically granted to the President of India under Article 72 of the Constitution of India. Article 72(1) says :"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 offence." The Governor of a State (Article 161) has this power in respect of any offense against any law related to the powers of the State. Where the sentence is a sentence of death, the power is exercisable also by the President under Article 72(1) (c) even in case of offenses under a law covered by powers of a State. Although making a Mercy Petition is a right granted by the Constitution, getting mercy is not a right. When the petition for clemency is pending before the President or the Governor, the execution of the sentence of death awarded by a court stands suspended. But merely because repeated applications are submitted after an earlier rejection that should not be the ground for staying the execution of the death sentence.

Under the scheme of the Constitution, Article 74 provides that the Council of Ministers is to aid and advise the President and further that in the exercise of his functions, the President shall act in accordance with such advice. The President may ask the Council of Ministers to reconsider any advice given by it but he is bound to follow the advice as received after such reconsideration.

This scheme applies equally to Mercy Petitions submitted to the President which, in practice, are referred by the President to the Ministry of Home Affairs. The Ministry formulates its view after consideration of all factors and after referring to the State and other authorities or ministries concerned. This view then translates into a recommendation for the President which is in the nature of “advice”. Advice tendered by a Minister has to be taken as the advice tendered by the Council of Ministers considering the principle of joint responsibility of the Cabinet. It then remains for the President to give his decision either on the basis of the advice or send it back for reconsideration. Once the advice is received after the reconsideration, the President is bound to follow the same. As held by the SC in Maruram’s case (1980) the two highest dignitaries in our constitutional scheme (President and Governor) must act not in their own judgment but in accordance with the aid and advice of the Ministers. “The power under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State.” In Sher Singh’s case (1983), the Judges themselves said “We do not, all of us, share the views of every one of us. And that is natural because, every one of us has his own philosophy of law and life, moulded and conditioned by his own assessment of the performance and potentials of law and the garnered experiences of life. But the decisions rendered by this Court after a full debate have to be accepted without mental reservations until they are set aside” Just as the judges while awarding a death sentence are concerned with delivering justice in accordance with the law rather than submitting to their own emotions,
so must the President follow the advice of the Government irrespective of his or her own feelings in the matter.
Considerations for Exercise of the Power

Pardon is not a gift. The power does not admit of any arbitrariness and capricious use. It is not a matter of privilege. It is a matter of performance of official duty not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public consideration alone. As the President (or the Governor) is the final arbiter and also as the exercise or non-exercise of the clemency power means a difference between life and death, it must be utilized with great care and every petition needs to be decided diligently and expeditiously. Failure to do so would mean having a system that does not work for justice. It is worth emphasizing that just as the death penalty is to be awarded by the judicial system in the “rarest of rare” cases, so also, as a natural corollary clemency from the punishment also should be granted by the President in the “rarest of rare” cases. With judicial processes becoming stricter, a situation may well come when there may be fewer rather than greater legitimate reasons to grant clemency in capital punishment cases. Any reasons for lesser sentence would have also been argued at the sentencing stage before the judiciary.

It is not possible to have rigid rules to govern executive discretion on clemency petitions. It is an imperfect duty and so clemency may be granted or refused even in similar situations. While deciding on mercy, it is necessary to carefully weigh not only the society’s expectation of retributive justice, but also the expectations of the relatives of the victims rather than looking at it merely from the point of view of the convict. "An undue exercise of the pardoning power is greatly to be deplored. It is a blow at law and order and is an additional hardship upon society in its irrepressible conflict with crime and criminals." Apart from the rights of the convict, the rights of others too are involved. The failure to punish taking into consideration deserts and proportionality of punishment relating to the crime is also a serious issue. Where there is a possibility of miscarriage of justice and there is doubt about the culpability, surely it must be weighed in favor of a petitioner. But where mercy has to be considered on other grounds, then it should be generally weighed in favor of society and families of victims. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without affecting the convict's guilt. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment.

“Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide.” The fact remains that higher the power, the more cautious would be its exercise.

Time Limit for deciding on Mercy Petitions

In India as in most countries where the power of pardon is available to the highest executive authority, it is generally recognized that no time limit can be fixed within which a mercy petition ought to be decided by that authority.

It is true that particularly in the case of Mercy Petitions; the Government would need to have flexibility of time in deciding upon a Petition. The Courts have themselves held that it is not possible to fix an absolute time frame. “The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for disposal of even for mercy petitions". However, at one time, in the case of Sher Singh (1983), the SC was constrained to observe:
“We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice.” Further, “The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable” It has also been suggested that indefinite delay on the part of the Executive in deciding upon a Mercy Petition, could give rise to a plea for commutation in certain situations by stating in these terms: “that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court.” In Trivenben's case (1989), the SC observed "The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay may be significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself."

Also in the case of Sher Singh it observed "It has been the sad experience of this Court that no priority whatsoever is given by the Government of India to the disposal of petitions filed to the President under Article 72 of the Constitution. Frequent reminders are issued by this Court for an expeditious disposal of such petitions but even then the petitions remain undisposed of for a long time." There have already been complaints about the delays in the judiciary where many of the delays are inherent in the system. Sadly the delays in the subsequent process of mercy petitions which does not require the same lengthy processes as the judiciary show an almost non-serious approach and disregard for the need and imperatives of considering the mercy petitions speedily on the part of the Executive i.e. The Government and the Office of the President.

In practice, the Government has never decided upon the Petitions expeditiously. But the Supreme Court had noted in the above case that “all exercise of power is preconditioned by the duty to be fair and quick.” “The process of justice after an arduous journey through the judicial system shall not be allowed to be frustrated either by delays or subjective decision by the executive.” The higher the position of the authority, the higher is the responsibility for speedy conclusions.

It is impossible to visualise a situation where the Executive would just not be able to decide for an inordinate length of time whether clemency is deserved or not. Indeed, it is submitted that after a time, it would be safe to presume that there is no case for clemency and as such it ought to be treated as having been rejected. It should also not be forgotten that a petition before the Executive is available as a matter of right and is a channel of extra judicial intervention in the process of criminal justice delivery system of the country. The Executive must accept the resultant legitimate pressure for speedy decisions from the point of view of the society, the families of victims and the guilty as well.
Judicial Review of President’s Order
All powers provided in the Constitution belong to the people, and are entrusted by them to specific institutions, including the President to maintain and operate constitutional order.

The process of executive discretion is not infallible just as the judicial process. The risk of error and abuse by way of granting pardons on wrong considerations exists also with regard to executive decisions. But the Constitution Bench has laid down that judicial review of the Presidential order under Article 72 and 161 cannot be exercised on the merits except within the strict limitations delineated in Maru Ram’s decision by the Constitution Bench. It observed that “all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide, and ordinarily guidelines for fair and equal execution are guarantors of valid play of power". The Bench stressed the point that the power cannot be a law unto itself but it must be informed by the finer canons of constitutionalism. Exercise of the power without application of mind, for wholly irrelevant, arbitrary, irrational, discriminatory and mala fide basis is not permissible. Where the power is exercised bypassing these principles, to that extent the order becomes open to judicial review. By way of examples, the SC in Eapurusudhakar's Case (2006) has also observed, per Kapadia J. "Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds." and further "Every prerogative has to be the subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent."