Image source: livelaw.com INTRODUCTION
In India, a mercy petition to the President is the last constitutional resort a condemned convict can take when he is sentenced by the court of law. It is preferred by a condemned convict or by someone on his/her behalf after all the judicial process is fully completed to have the death sentence commuted. The President of India and the Governor of a State under Article 72 and Article 161 of the Constitution respectively can commute the death sentence of the condemned prisoners. The death row prisoner first approach the Governor under Article 161 with a mercy petition after the Supreme Court finally gave the verdict of the matter. The execution of the death sentence is stayed till the mercy petition is undecided. Once the mercy petition is repudiated by the Governor, the condemned convict prefers mercy petition to the President under Article 72 of the Constitution. While deciding the mercy petitions of the convicts the President and Governors have to act as per advice of the Union Cabinet and State Cabinet respectively. PROCESS OF MAKING A MERCY PETITION There is no statutory written procedure for regarding mercy petitions, but in practice, after extinguishing all the remedies in the court of law, either the convict in person or his relative on his/her behalf may submit a written mercy petition to the President. The President’s secretariat receives the petitions on his behalf, which is then passed on to the Ministry of Home Affairs for their comments and recommendations. A prisoner under the sentence of death is permitted to make the petition within a period of seven days after the date on which the Superintendent of jail notifies him about the dismissal of the appeal or special leave to appeal by the Apex Court. The Home Ministry in consultation with the duly authorized State Government discusses the merits of the petition. The Home Minister makes the recommendations after the consultation and then, the petition is forwarded to the President for the final decision. Despite the fact that the President and Governor are the executive heads, they cannot exercise their discretion under Articles 72 and 161. They are required to act on the advice of the pertinent government–Central and State Government. The advice of the fitting Government binds the President. The President can either accept or reject the petition for mercy as per the advice by the council of ministers. However, the Constitution of India doesn’t provide for a specified time limit to accept/reject the mercy petition. He can keep the petition pending for an indefinite period of time if he wishes to. MERCY PETITION: BOON OR BANE Mercy Petition lies in saving a righteous person from being punished due to unjustified conviction or miscarriage of justice. The hope of being pardoned itself serves as a motivation for the convict to conduct himself in the prison institution and thus, helps significantly in solving the issue of prison regulation also. The concept of Mercy Petition is followed in many nations like UK, USA, and Canada etc. including India. It connects a human touch to the country’s judicial process by giving powers to grant pardon or show Mercy to condemned convicts. They can review the applications without viewing it from a legal angle like that of legal experts who base their viewpoints solely on the basis of available evidence and the testimony of witnesses. The courts of civilized states have acknowledged and recognized that a lengthy delay in executing a death sentence can make the punishment severe and degrading. The prolonged suffering of alternating between hope and despair, the anguish of unpredictability, the outcomes of such suffering on the mental, emotional and physical integrity and health of not only the convict but also his family should not be allowed in refined societies. In the case of State v. Jagbir Singh , the Supreme Court called upon to decide the nature and extent of the pardoning power of the President of India under Article 72 of the Indian Constitution. In this case, judicial execution of one of the appellants was confirmed by the Apex Court. The President also rejected his mercy petition. Then the appellant filed a Petition in the Apex Court challenging the discretion of the President to grant mercy on the ground that no reasons were given for refusal of his “Mercy Petition”. The court dismissed the Petition and held that it is totally a discretionary remedy and grant or rejection of it need not be reasoned. Again, Supreme Court in Kehar Singh v. Union of India  recapitulated its earlier stand and observed that granting pardon by the President is an act of grace and therefore, cannot be declared as a matter of right. The power exercisable by the President being particularly of administrative nature is not reasonable. The Constitution confers a right on such condemned convicts and a duty on the Presidents and Governors to duly examine the Petitions and take action on them efficiently. Keeping such Petitions for uncertain, the government seems to be entirely ignorant of its obligations in law and of the human aspect of the agony of persons on death row. It deals them as if they are standing in a waiting line for rations. So, it is not right to describe the Petitions made to the President and Governors under Articles 72 and 161 of the Constitution by convicted persons as “Mercy Petitions”. After carefully looking through, the Supreme Court shifted its earlier outlook in the Sher Singh case and in categorical terms fixed a slight deadline of 3 months on respective governments for disposal of Petitions filed under Articles 161 and 72 of the Indian Constitution or under Sections 432 and 433 of the Criminal Procedure Code.
Afzal Guru , who was convicted for his role in the 2001 terrorist attack on Indian Parliament, had been on death row after his appeal was dissolved by the Supreme Court on August 5, 2005. His family filed Clemency Petition to the President and his execution was stayed by the government. Afzal Guru endured agony in solitary isolation, being unaware whether he would be executed or not. The suffering of his family must not be any less. On 3rd February 2013, his Mercy plea was dismissed by the President of India, Pranab Mukherjee and he was hanged secretively at Delhi’s Tihar Jail.
Under a landmark ruling in January 2014, the Supreme Court has humanized the way the state treats death row convicts therefore, a convict cannot be executed for 14 days after the rejection of his Clemency plea as notifying allows the convict to prepare himself mentally for execution, prepare his will, settle other earthly affairs and to make his peace with god. It is the responsibility of the Superintendent of Jail to make sure that the family members of the convict get the message of communication of rejection of the Mercy Petition in time. CONCLUSION
While the Indian judicial system recognizes the fallibility of human judgment being inarguable even for the most trained minds, in the process of providing mercy petitions, the lack of defined procedure and proper guidelines, renders the same as hollow. There is a need of a well-established format of a mercy petition so all required information is before the decision-makers. The undetermined mercy petition continues to be a major problem. Therefore in the absence of defined time period for disposal of mercy petitions, even the mechanism for judicial review is rendered unnecessary because the case solely lingers adding to the unease of both the convict and the victim. Some modifications are required to eliminate the possibility of irregularity in exercising discretion and to make sure that the petition does not endure beyond a certain time, and timely relieves both the convicts and the families of the victims of the unease of what is to come. FOOTNOTES  17 (1980) DLT 404, ILR 1979 Delhi 571  1989 (1) SCC 204 REFERENCES 1. https://www.indialegallive.com/is-that-legal-news/mercy-petition-pardoning-powers-president-governor-constitution/ 2. https://www.thehindu.com/news/national/disposing-of-mercy-plea-a-constitutional-obligation-court/article5603033.ece 3. https://rashtrapatisachivalaya.gov.in/statement-mercy-petition-cases-rejected