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Explained: Mercy petition, presidential powers under Constitution to pardon

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As per the Constitutional framework in India, mercy petition to the President is the last constitutional resort a convict can take when he is sentenced by the court of law. A convict can present a mercy petition to the President of India under Article 72 of the Constitution of India.

Similarly, the power to grant pardon is conferred upon the Governors of States under Article 161 of the Constitution of India.

Article 72 provides:

(1) 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—
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.

Thus, Article 72 empowers the President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.

While Article 161 provides:

Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends.

Process of making a mercy petition:

There is no statutory written procedure for dealing with mercy petitions, but in practice, after extinguishing all the reliefs in the court of law, either the convict in person or his relative on his behalf may submit a written petition to the President. The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.

A convict under the sentence of death is allowed to make the petition within a period of seven 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 Home Ministry in consultation with the concerned State Government discusses the merits of the petition. After the consultation, recommendations are made by the Home Minister and then, the petition is sent back to the President for his decision.

Note: Even though the President and Governor are the executive heads, but they cannot exercise their discretion with regard to their powers under Articles 72 and 161. Both the executive heads are required to act on the advice of the appropriate government–Central and State Government. The advice of the appropriate Government binds the Head of the state.

The President can either accept or reject the mercy plea as per the advice by the council of ministers. However, the Constitution doesn’t provide for a specified time limit to accept/reject the mercy petition. He can keep the petition in abeyance for an indefinite period if he wishes to.

What happens when a convict moves a mercy petition?

In case, the petition is filed within seven days then it is the duty of the Jail Superintendent to stay the execution of the death sentence. However, this does not mean that after the expiry of seven days a convict cannot file a mercy petition. In such exceptional cases or intervening circumstances, it is the concerned state government that will decide the question of deferring the death sentence.

Difference between pardoning powers of President and Governor:

Though the President and Governor enjoy pardoning powers to the extent their executive power extends, however, the scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. Power differs in the following two ways:

The President’s power to grant pardon extends to the cases where the sentence or punishment has been awarded by a Court Martial, but the Governor’s power prescribed under Article 161 doesn’t provide so.

The President can grant pardon in all cases, including the death sentence, but the pardoning power of the Governor doesn’t extend to death sentence.

What do the laws of other countries provide?

USA:

The Constitution of America gives the President the similar powers to grant reprieves or pardon for offences under Federal law, except in cases of impeachment. However, in cases of violation of state law, the power has been given to the concerned Governor of the state.

UK: 

In UK, the Constitutional monarch can pardon or reprieve for offences on ministerial advice.

Canada:

The National Parole Board under the Criminal Records Act is authorized to grant such reliefs.

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