MERCY PETITION AND DEATH PENALTY IN INDIA

INTRODUCTION TO CAPITAL PUNISHMENT

Capital Punishment is a legal death penalty. India gives capital punishment only for a heinous

offence. As per section 409 of Bharatiya Nagarik Suraksha Sanhita, 2023 provides the authority to High Courts for confirmation of death sentence. The death penalty is given for most serious offences and heinous offences that fall under the category of rarest cases in India. Recently in 2020, The Supreme Court awarded death penalty to four of accused who were convicted for the offence of rape(Nirubhaiya Case). The Session Court has the power to impose the death penalty and it is subject to confirmation by the High Court. The High Court either upheld the death penalty imposed by the session court or direct the session court to conduct the further inquiry\gather additional evidence. The person who was sentenced to death penalty has the right to appeal in the High Court and Supreme Court. After the death sentence is confirmed by the High Court, an appeal by Special Leave Petition (SLP) under Article 136 of the Constitution may be filed. The Supreme Court may in its discretion after considering the issues grant special leave to appeal under Article 136 of the Constitution. Exercising its power under Article 136, the Supreme Court decides whether the special leave petition deserves to be heard as appeals. And the most important thing is that the death penalty shall not be executed until the limitation period for appeal.

IS CAPITAL PUNISHMENT LEGAL IN INDIA

The Capital Punishment or death penalty is a legal punishment in India and is permissible for some crimes under the country’s main substantive penal legislation, Bharatiya Nyaya Sanhita, 2023 as well as other laws. Prior to the Criminal Procedure (Amendment) Act, the death penalty was the rule and life imprisonment an exception in India. Certain offences under BNS for which the offenders can be sentenced to punishment of death are:

●????? Murder

●????? Dacoity with Murder

●????? Gang rape of child under 18 years

●????? Mob Lynching

●????? Abetment of suicide of child or person of unsound mind

●????? Criminal Conspiracy

●????? Waging war against the Government of India

●????? Rape and Murder

For these kinds of offences the Court shall pronounce capital punishment. As per Section 393 (3) of the BNSS,2023 the courts are required to state special reasons in writing for awarding the maximum penalty. And there is an exception for women convicts. As per section 456 of BNSS, if a woman sentenced to death is found to be pregnant, the High Court shall commute the sentence to imprisonment for life. As per official statistics, more than 100 executions have taken place in India since it became independent in the year 1947. As per Section 393 (3) of the BNSS,2023 the courts are required to state special reasons in writing for awarding the maximum penalty. In Jagmohan Singh v. State of U.P (1973), the Supreme Court upheld the constitutionality of the death penalty, holding that it is not merely a deterrent but marks the rejection of the crime on the part of the society. The Supreme Court held that according to Article 21 of Indian Constitution deprivation of life is constitutionally permissible if that is done according to the procedure established by law. Thus, the death sentence imposed after a trial in accordance with legally established procedures is not unconstitutional under Article 21 of the Indian Constitution.

DOCTRINE OF RAREST OF RARE CASES

■????? There is no statutory definition of rarest of rare.

■????? It depends upon facts and circumstances of a particular case, brutality of the crime, behaviour\conduct of the offender, previous history of his/her involvement in crime.

■????? The capital punishment in India is based on the rarest of rare cases.

The expression rarest of rare cases was coined by the Supreme Court in the case of Bachan Singh v. State of Punjab, (1980) and since then, life imprisonment is the rule and death penalty the exception as in India it is awarded only in the gravest of cases. The principles laid down in Bachan Singh were summarized by a three Judge Bench of the Supreme Court later in the case of Machhi Singh v. State of Punjab, (1983). The following propositions emerge from Bachan Singh case:

1. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
2. Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime.
3. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
4. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

DIMENSIONS OF RAREST OF RARE TEST

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■????? According to the Supreme Court, the crime must be viewed from different angles such as the manner of committing the murder, the motive for the murder, the anti- social or socially abhorrent nature of the crime and the horrors and personally of the victim of the murder.

■????? Generally, The Hon’ble Court sentences life imprisonment to convicts in a murder case as well as in rape cases. Only in rarest of rare cases murder convicts are given the death penalty.

State of Kerala v. Muhammed Ameer-Ul Islam Case

Summary:

In this case, the accused who is a native of Assam was a migrant labourer. He was residing during April 2016 at Vaidyasalapadi near Perumbavoor. The accused was aged 22 years then. On 28th April 2016, the victim, a 30 year old law student was alone in the house during daytime, as her mother had gone to visit on that day, some of her acquaintances.When the mother returned home by about 8.30 p.m., the front door of the house was found to be locked from inside and there was no response from the victim when she was called out. When the Sub Inspector of Police entered the house through the back door, he found the body of the victim in the middle room lying in a pool of blood, half naked with grievous injuries throughout her body. A part of the internal organs of the victim was also seen pulled out. The investigation in the case revealed that it was a case of rape and murder committed by the accused, and final report was accordingly submitted in the case.

Offences charged ?

The accused in the case stands convicted for the offences punishable under Sections 449, 342, 376, 376A and 302 of the IPC

Held:

The Trial Court found the accused guilty of the offences punishable under and sentenced him to death. The accused is deeply aggrieved by his conviction and sentence. Thereafter, challenging his conviction, a criminal appeal was filed before the Kerala High Court. Dismissing the criminal appeal, the death sentence awarded to the accused is confirmed.

OBSERVATION OF COURT

■????? The division bench comprising Justices P.B. Suresh Kumar and S. Manu observed that the case was deeply disturbing and represented a severe violation of human dignity and sanctity of life since after committing rape in an inhumane manner, the victim was murdered horrendously. The Court found that the case has far-reaching consequences since it creates fear and vulnerability amongst women.

■????? The Court further observed that awarding the ultimate penalty of death sentence to the accused in the case would serve as a resolute deterrent to those who would consider perpetrating such abhorrent acts in future, so that persons similarly placed like the victim who are innumerable in our society, would live with a sense of security and without fear.

■????? The Court concluded this judgement with the celebrated statement made by the Nobel

■????? Laureate, Alexander Solzhenitsyn, “Justice is conscience, not a personal conscience, but the conscience of the whole humanity”.

MERCY PETITION

Mercy Petition is an idea that is followed in many countries such as the United Kingdom, India, Canada, and the United States of America. It means if the person is convicted for the offence and sentenced to death penalty then the convict can file a mercy petition to the president seeking to relieve him from the death penalty. Even if one of the convicts applies for the mercy plea, it becomes applicable to all in case there are more than one convicts in the same case. For seeking mercy petition, the death sentence by a sessions (trial) court must be confirmed by the High Court. The death sentence convict has an option to appeal to the Supreme Court. If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relative can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (Article 161). The convicts hope they will be pardoned, which compels them to maintain discipline and behave according to the rules of the prison establishments. Everybody has the right to life, and according to Article 21 of the Indian Constitution, it is one of the fundamental rights.?

Legal Provisions In Correlation To The Mercy Petition

As per section 472(1) of BNSS, Anyone convicted and given death punishment can also file a Mercy petition? within 30 days from when the jail Superintendent informs him that the Supreme Court has rejected his appeal. This is basically the last resort that any accused can have. The mercy petition may initially be made to the Governor and on its rejection or disposal by the Governor, the petition shall be made to the President within a period of sixty days from the date of rejection or disposal of such petition. Sec 473(3) of BNSS states that in case there are multiple convicts and one of them files a mercy petition, the superintendent of police has to ensure that the other convicts file a mercy petition within a period of 60 days, and if they fail to do so, the superintendent of the jail is required to provide their names, addresses, a copy of the case record, and all other details of the case to the central or state government for consideration.

According to the constitution, a convicted person has the right to get clemency.

Article 72 and 161 of the Indian Constitution deals with the pardoning powers of the President and Governor of India. When the President of India takes action over the case of punishment or the sentence of any person convicted for an offence, it takes the form of his pardoning powers. They are five types of pardoning power of President:

1. Pardon-Both the sentence and the conviction of the convict completely absolve the sentences, punishments and disqualifications.
2. Respite-Lesser the sentence which was imposed by the Court.
3. Reprieve- Stays the execution of a sentence (especially that of death) for a temporary period.
4. Remit-Reduce the period of the sentence but the character of the sentence remains the same. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year but the imprisonment remains rigorous.
5. Commute-Substitutes one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.

Limitation:

1. The President cannot exercise his power of pardon independent of the government.
2. In several cases, the Supreme Court has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas.(Maru Ram vs Union of India in 1980)

Procedure:

1. A convict under the sentence of death is allowed to file a mercy petition within a period of thirty days after the date on which the Superintendent of Jail informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court. The petitions are to be presented to the President of India. The President's office seeks cabinet advice. The appeal is examined by the Ministry of Home Affairs and the Ministry before giving recommendations to the President, taking the view of the State concerned. Although the President is bound by the Cabinet’s advice, Article 74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it. There is no written procedure to deal with mercy petitions.

APPEAL FROM PRESIDENT\GOVERNOR DECISION

As per section 472 of BNSS, No appeal shall lie in any Court against the order of the President or of the Governor made under article 72 or article 161 of the Constitution and it shall be final, and any question as to the arriving of the decision by the President or the Governor shall not be inquired into in any Court

CASE LAW

Mukesh & Anr VS State for NCT of Delhi & Ors:

The rape convicts (four accused) was sentenced to death penalty and the same decision was upheld by the High Court and Supreme Court. The Tihar Jail administration had asked the convicts to apply for mercy petition before the President within seven days. The convict had filed a mercy petition before the president. The President denied the mercy petition and the death penalty was executed on March 20, 2020.

ADVANTAGES OF MERCY PETITION UNDER NEW ACT BNSS

●????? A convict under sentence of death can only file a mercy petition through his legal heir or any other relative. At present, various social organizations and NGOs file petitions for death row convicts who are often not able to file a petition due to unawareness or separation from family. Therefore, by restricting individuals and organizations, the BNSS ignores ground reality and is thus likely to have an adverse effect on the filing of mercy petitions by convicts.

●????? Under Crpc, convicts can first file a petition for mercy before the high court on any order passed by the session's court. If the petition is dismissed by the high court, the convict can approach the Supreme Court through a special leave petition. The convict can further file a review and then a curative petition before the Supreme Court. This remedy might appear sufficient with regards to a convict; however, the newly introduced section 473 of BNSS appears to limit this time frame or limit the options available to a convict in the form of judicial remedies for mercy petitions to the convict.

●????? In case there are multiple convicts and one of them files a mercy petition, the superintendent of police has to ensure that the other convicts file a mercy petition within a period of 60 days, and if they fail to do so, the superintendent of the jail is required to provide their names, addresses, a copy of the case record, and all other details of the case to the central or state government for consideration.

●????? The decision made by the President or Governor shall be final and binding. It shall not be inquired into any Court.

CONCLUSION

In India, the mercy petition process acts as a crucial safeguard within the criminal justice system, allowing condemned individuals to appeal to the President of India for clemency. This process serves to ensure that the death penalty is applied with compassion and consideration for any mitigating circumstances that might affect the appropriateness of capital punishment. The death penalty remains a contentious issue, with debates focusing on its deterrent effect, ethical implications, and the risk of wrongful convictions. While the Supreme Court of India has ruled that the death penalty should be reserved for the "rarest of rare" cases, there is ongoing discussion about its effectiveness and morality. The mercy petition process represents a balancing act between upholding the rule of law and allowing for compassion in cases involving the most severe punishments. It highlights the tension between justice and mercy, reflecting broader societal values and the evolving nature of criminal justice in India.