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Dr. RAMESH KUMAR

SPECIAL ARTICLE ON MERCY PLEA [CLEMENCY]
Introduction

o Mercy plea or Clemency means the forgiveness of a crime or the

cancellation (in whole or in part) of the penalty associated with it. It is a
general concept that encompasses several related procedures:
pardoning, commutation, remission and reprieves

Procedure dealing with Mercy Plea

o Person who is sentenced to death applies for Mercy plea
to the State
Home ministry
it forwards the plea to the Home Ministry of India via
Chief minister’s office with its recommendations
Home Ministry may
accept/ reject state government’s recommendations
then Home
ministry forwards its recommendations to the President
Under the
constitution, the ministry's advice is BINDING on the President; he can
at best ask for a reconsideration of the recommendation once.
o When sentenced person belongs to Union Territory
he applies to
governor
governor forwards to home ministry
from Home
ministry
president

Why recently in news

o Recently President of India has rejected the mercy plea of A. Kasab

Role of National Crime Records Bureau

o NCRB or the National Crime Records Bureau is a governmental agency

of India responsible for collecting and analysing crime data as defined
by the Indian Penal Code (IPC). As an attached office of Ministry of
Home Affairs (MHA)
o According to its report, presently 12 mercy petition cases of 17 death
convicts are pending under Article 72 of the Constitution of India
including Kasab case.

What article 72 says

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Dr. RAMESH KUMAR
Article 72. Power of President to grant pardons, etc, and to suspend, remit or
commute

sentences in certain cases

o (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
o (a) in all cases where the punishment or sentence is by a court Martial;
o (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;
o (c) in all cases where the sentence is a sentence of death

What is Article 161

o 161. 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
How pardoning power of president differ from governor
o The scope of the pardoning power of the President under Article 72 is
wider than the pardoning power of the Governor under Article 161
o The power of the President to grant pardon extends in cases where the
punishment or sentence is by a Court Martial but Article 161 does not
provide any such power to the Governor.
o The President can grant pardon in all cases where the sentence given is
sentence of death but pardoning power of Governor does not extend to
death sentence cases.
Is pardoning or rejecting Mercy Plea vested with individuals
o Pardon includes complete forgiveness, commutation or lessening of the
penalty and reprieve or temporary postponement of punishment.
o Unlike in the past, the power to pardon now vests in most cases with a
body or institution rather than individuals

What about pardoning power of US president

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Dr. RAMESH KUMAR
o In the United States, the pardon power for federal crimes is granted to
the President of the United States under Article II, Section 2 of the
United States Constitution which states that the President "shall have
power to grant reprieves and pardons for offenses against the United
States, except in cases of impeachment.

Can the president delay his/her judgment on mercy petitions?

o Article 72 does not mention any time limitation for consideration of

mercy petitions. Technically, the president can sit over the petition for
his/her entire term.
o Government stated in the court that there is no prescribed time limit for
mercy petitions and hence the president cannot be forced to speed up
the process.

Is there any sequential number to be followed while deciding mercy Petitions

o There is no sequential provision in deciding clemency petitions and

hence the commonly used reference in which petitioners are numbered
like 21st or 22nd in waiting is wrong.

Does the decision on mercy petition then depend only on executive

discretion?
o No, it is well settled that the power of the president and governors to
pardon is not immune to judicial review. Time and again, the judiciary
has challenged these decisions. Judicial review in such cases cannot be
seen as disrespect to the country's highest office as it is established that
the president can only act on the advice of the council of ministers.
o Through various judgments, the Supreme Court has observed that the
orders can be impugned if they have been passed without application of
mind, an order is mala fide, has been passed on extraneous and
irrelevant considerations, the relevant matter is not considered or
suffers from arbitrariness.
Importance of Mercy Plea
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Dr. RAMESH KUMAR
o The pardoning power of Executive is very significant as it corrects the
errors of judiciary. It eliminates the effect of conviction without
addressing the defendant’s guilt or innocence

What needs to be done regarding Mercy Plea

o The process of granting pardon is simpler but because of the lethargy of

the government and political considerations, disposal of mercy petitions
is delayed.
o Therefore, there is an urgent need to make amendment in law of
pardoning to make sure that clemency petitions are disposed quickly.

There should be a fixed time limit for deciding on clemency pleas.