Mercy plea rejected by President, what next for death-row convict?

Written by Ananthakrishnan G |New Delhi |Published: May 31, 2018 12:41:40 am

President Ram Nath Kovind has rejected the mercy plea of Jagat Rai who, along with accomplices, was convicted of killing a woman and five children by setting their house on fire while they were asleep in 2006, at Rampur Shyamchand village in Bihar. His death sentence was upheld by the Supreme Court in 2013. There have been precedents that show judicial options remain for a death-row convict even after rejection by the President.

When it reaches President

The sentence of death passed by a trial court has to be confirmed by a High Court. The convict can then move the Supreme Court. In September 2014, a Constitution Bench of the SC held that appeals against HC rulings confirming the death sentence will be heard by a Bench of three judges. Once the SC dismisses such an appeal, the convict can seek a review (to be heard in open court) and subsequently, file a curative petition. If all these are dismissed, the convict has the option of a mercy petition. There is no time limit within which the mercy petition has to be decided.

Power of pardon

Under Article 72 of the Constitution, “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 where the sentence is a sentence of death”. Under Article 161, the Governor too has pardoning powers but these do not extend to death sentences. The President cannot exercise his power of pardon independent of the government. Rashtrapati Bhawan forwards the mercy plea to the Ministry of Home Affairs, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.

In several cases, the SC has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994. 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.

After President decides

In October 2006, in Epuru Sudhakar & Another vs Andhra Pradesh and Others, the SC held that the powers of the President or Governor under Articles 72 and 161 are subject to judicial review. Their decision can be challenged on the ground that (a) it was passed without application of mind; (b) it is mala fide; (c) it was passed on extraneous or wholly irrelevant considerations; (d) relevant materials were kept out of consideration; (e) it suffers from arbitrariness. Can a High Court review the President’s rejection of a mercy petition? The question is pending before the SC. Sonu Sardar, a murder convict from Chhattisgarh, was sentenced to death in 2008 for killing five members of a scrap dealer’s family, including two minors, in 2004. After his mercy pleas to the Governor and the President were rejected, Sardar moved the Delhi HC in 2015 challenging the rejection citing “delay, improper exercise of power and illegal solitary confinement”.

On June 28, 2017, the High Court commuted the sentence to life imprisonment. The Centre challenged this, and the Supreme Court issued a notice in November 2017. The government contended that only the Supreme Court should entertain petitions against the President’s decision to reject a mercy petition.

Source: https://indianexpress.com/article/explained/ram-nath-kovind-what-is-mercy-petition-death-sentence-supreme-court-5197771/ (Accessed 24 December 2018)

President Rejects Mercy Petitions Of Five Death-Row Convicts In Two Days (Madhya Pradesh)

BY: LIVE LAW RESEARCH TEAM JUNE 18, 2017 10:31 PM

President Pranab Mukherjee rejected mercy petitions from five death-row convicts, on May 25 and 26. These are perhaps his last disposal of mercy petitions, before his term expires on July 24. 

Pranab Mukharjee, Indian President (2012–2017)

With these, he has rejected mercy petitions of 41 death-row convicts, whereas he has commuted the death sentences of only seven, to life imprisonment. On May 25, he rejected the mercy petitions of Jitendra @ Jeetu, Babu @ Ketan, and Sanni @ Devendra. The Supreme Court dismissed their appeals against their death sentences, confirmed earlier by the High Court of Madhya Pradesh (Indore Bench), on January 6, 2015 in limine, through an order pronounced by the bench of the then Chief Justice H.L. Dattu, and Justices A.K.Sikri and R.K.Agrawal. The order just carried three words: “Delay condoned. Dismissed”. The Supreme Court, while hearing the landmark Shatrughan Chauhan case, had decried the practice of in limine dismissals by the Supreme Court of appeals by death-row convicts. 

According to the Death Penalty India Report Volume 1 published by the National Law University, Delhi, last year, there have been nine in limine dismissals of SLPs filed by the death-row convicts in the Supreme Court since 2004. The bench, which dismissed Jitendra, Babu and Sanni’s SLPs in January 2015 also dismissed in limine, another SLP filed by Babasaheb Maruti Kamble, in the same month. In limine dismissals, because they lack reasoning, are legally indefensible, and the death-row convicts have a fair chance of getting their appeals reheard by the Supreme Court on this ground. Interestingly, the review petition filed by Jitendra @ Jeetu and other convicts, is yet to be heard by a three-Judge bench in open court as mandated by the Supreme Court’s Constitution bench in Mohd. Arif case.

It was last listed before Justice Kurian Joseph in Chambers on October 5, 2015, when he directed that the applicants in the case shall also be heard when the Review Petition is heard in the open Court. In their Judgment, Justices S.K.Seth and P.K.Jaiswal of the Indore Bench of the Madhya Pradesh High Court, (authored by Justice Seth), had held that the accused, by their extremely depraved and demonic acts against an infant of three or four years, hae forfeited the right to be treated softly or lightly. “So long as the death sentence remains on the statute book, it would, in our opinion, be a travesty of justice to award the lesser sentence of life to the accused”, the bench had observed. 

According to the High Court, the prosecution has made out two very important circumstances against the accused. They are the DNA report and the seizure of documents from the spot per seizure Memo. “These two circumstances by themselves in our opinion, build a chain of circumstances leading to the one and only conclusion of the involvement of all the three accused persons before us”, the bench had held. Last rejection The President rejected the mercy pleas of Purushottam Dashrath Borate and Pradeep Yeshwant Kokade, on May 26. Their appeals against the death sentences were dismissed by the Supreme Court’s three-judge bench on May 8, 2015. The judgment was authored by the then Chief Justice, Dattu, on behalf of himself and justices S.A.Bobde and Arun Mishra. The two accused in this case were found guilty of sexually abusing and killing a BPO employee, on her way to work in Pune, in 2007.

The accused were part of a private cab service, hired by the deceased’s employer to pick up employees from their homes, and drop them, after their work shifts were over. The Supreme Court confined the hearing of their appeals to only the issue of sentence. The bench observed that in a case where the accused does not act on provocation or on the spur of the moment, but meticulously executes a deliberate, cold-blooded and pre-planned crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by our criminal jurisprudence would tilt heavily towards the death sentence. The incident, the bench held, shocked and repulsed the collective conscience of the community and the court. As a result, the bench found no mitigating factor in favour of commutation of their death sentences to life imprisonment. 

Whatever the findings of the Courts, the President is expected to apply his mind independently while exercising his powers under Article 72 of the Constitution. Eminent scholar and statesman, Gopalkrishna Gandhi, observed in his book, Abolishing the Death Penalty, (Aleph, 2016) as follows: “The president is bound by the Government’s advice, but the subject –the life and death of an Indian citizen –makes it possible for the President, and I would say incumbent on the President to go into each such case with a magnifying glass. And this not just to spot loopholes of fact, but also to see the crime against the light of circumstances, and contexts that lie beyond purely legal facts and legal interpretations” (pages 47- 48).

Gopalkrishna Gandh, further observed: “Presidential inclinations cannot form the final gradient to the gallows. A mercy petition cannot be at the mercy of one man’s temperament, albeit filtered by governmental advice. That is valuationally abhorrent in a democratic republic governed by the rule of law.” He continues: “In the provisions of Article 72 lie a certain philosophy, inadequately explained, that requires the executive study of a mercy petition to be trans-judicial, but not un-judicious, to be a large canvas but not a tabula rasa for presidential expressionism. No man’s life can be left to the mercy of another man’s discretion. Raisina Hill is not the Purana Qila, nor Rashtrapati Bhavan the Red Fort.” These are indeed strong words.

Source: https://www.livelaw.in/president-rejects-mercy-petitions-five-death-row-convicts-two-days/ (Accessed 23 December 2018)

Nirbhaya effect: Govt favours death term for three

Himanshi Dhawan, TNN Jul 4, 2013, 05.01AM IST

NEW DELHI: It is the Nirbhaya effect on UPA-2. The government has recommended death penalty for three convicts found guilty of women-related crimes. While Madhya Pradesh resident Maganlal was found guilty of murdering his five daughters, Karnataka'sShivu and Jadeswamy were convicted of rape and murder. Both cases have been sent to the President for his assent by the home ministry. 
Shivu and Jadeswamy brutally raped and murdered an 18-year-old girl on October 15, 2001. The high court rejected the appeal and confirmed death penalty in November 2005. This was confirmed by the Supreme Court in 2007. Home ministry in April 2013 recommended rejection of the mercy petition following which two new mercy petitions were filed on Shivu's behalf. The petitions were filed by the condemned prisoner's mother Chellamma and by people and members of the Badrayyanahalli Kuratti Hosur gram panchayat. Subsequently, the case was sent to the President in June.
Madhya Pradesh's Maganlal murdered his five daughters on June 11, 2010 following which he was handed death sentence by the district court which was upheld by both the high court and the SC. The MP governor rejected the mercy petition in 2012 which was confirmed by the home ministry.
Both cases are now before President Pranab Mukherjee who is empowered by the Constitution to grant presidential pardon. Presidential pardon arises from Article 72 of the Constitution that empowers the President to pardon, grant reprieve or suspend, remit, commute sentence of person convicted of any offence. The President is guided by the home minister and the council of ministers.
The President has so far rejected nine mercy petitions sentencing 14 convicts including one woman to death since he took charge of Rashtrapati Bhavan in July 2012.
Among the first mercy petitions to be disposed of included 26/11 terrorist Ajmal Kasab's. He was executed in November 2012 which was the first hanging after 2004 and marked a sharp departure in India's policy towards death penalty.
Mukherjee has since rejected the mercy petitions of Saibanna Ningappa Natikar on January 4, 2013 and Parliament attack convict Afzal Guru on February 3. He commuted the death sentence for Atbir who was found guilty of murdering three relatives over a property dispute on November 15, 2012.
Between February and March 2013, Mukherjee rejected the mercy petitions of Veerappan aides Simon, Gnanaprakash, Madaiah and Bilavandran who killed 22 people by blasting a land mine, mass murderers including Suresh and Ramji, Gurmeet Singh and Jafar Ali. He also rejected the mercy plea of rapist-murderer Dharampal and that of Sonia and Sanjeev. Sonia, daughter of a former Haryana MLA, and her husband Sanjeev drugged and killed eight of her family in Hisar in 2001 including her parents. These cases have now been appealed in the Supreme Court by human rights activists. 

Source : http://articles.timesofindia.indiatimes.com/2013-07-04/india/40370259_1_atbir-saibanna-ningappa-natikar-mercy-petition