ALTHOUGH, historically, mercy was the personal prerogative of the sovereign, in the Indian republic it is a power that must be exercised by the government within the bounds of the Constitution. Thus, the President and the Governor, in exercising their mercy powers respectively under Article 72(1)(c) and Article 161 of the Constitution, must act on the advice of the Council of Ministers at the Centre and in the States respectively. In practice, therefore, most decisions on mercy petitions are made by the Minister of Home Affairs (MHA) on the recommendation of a Joint Secretary or an Additional Secretary. Only a few exceptional cases have been discussed at the level of the Cabinet.
In making its decision on mercy, the governments role is not limited to looking at only the facts found to be true by the judiciary or even the evidence produced in the courtroom. It can take into account a much wider set of circumstances, facts and evidence. Given this nature, as also the object of the power, it has been generally argued that it is impossible to lay down any definite rules for taking a decision on a mercy petition.
Initially, the Supreme Court suggested that it would be proper for the government to make its own rules for guidance in decision-making. Later, however, it rejected pleas from condemned prisoners, who argued that the absence of guidelines led to the arbitrary exercise of power.
In the landmark judgment in the Kehar Singh case (AIR 1989 SC 653), the Supreme Court noted that power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case in which the merits and reasons of state may be profoundly assisted by prevailing occasion and passing time. A virtually identical response was provided by the MHA when information on mercy-petition guidelines was sought through a question in Parliament in November 2006.
Although the MHA claimed in Parliament that no specific guidelines could be framed, it is clear that guidelines do exist. The colonial government of British India had drafted certain general guidelines to assist decision-making. The MHA combined these with a few guidelines drawn up by subsequent Home Ministers and put them into a document, Guidelines for dealing with mercy petitions (see earlier story for list of guidelines). This undated document is what the government uses now for decision-making on mercy petitions.
In 2005, President A.P.J. Abdul Kalam, finding these guidelines inadequate, requested the MHA to consider also the following when deciding petitions: the humanist and compassionate grounds in each case; the scope for recidivism; and the financial liabilities of the convicts family. These have not been included in the guidelines. A study of decided mercy petitions (covering 1947-1971 at the National Archives of India and 1981-2006 at the MHA), however, shows that in addition to the seven-point guidelines, many other factors influenced the government and the President when deciding mercy petitions.
Factors relating to evidence: Despite the wide scope of mercy proceedings, it is generally believed that the government should not provide an additional court of appeal. The seven-point guidelines, therefore, suggest that the government should only look into matters of evidence in cases where the judges expressed some concern about it (Guideline II: cases in which the appellate court has expressed its doubt as to the reliability of the evidence and has nevertheless decided on conviction), or in specific cases where fresh evidence was claimed (Guideline III: cases where it is alleged that fresh evidence is obtainable mainly with a view to seeing whether fresh inquiry is justified), or where an individuals role in a gang murder had to be determined (Guideline VI: Consideration of evidence in fixation of responsibility in gang murder cases). In practice, however, the government has commuted a large number of sentences on grounds of inadequate or unsatisfactory evidence even when the courts were convinced about the suitability of the evidence.
The discussion within the MHA on evidence in mercy petitions has often extended to minute details. Sentences have been commuted on the executive being dissatisfied with the particular evidence presented in a case. In one case, the sentence was commuted as the government believed it would be risky to send a person to the gallows only on the basis of oral evidence of a stereotyped nature. Other reasons have ranged from inconsistencies in dying declarations and scope for tutoring to contradiction in witness testimonies and lack of independence in testimonies.
In a case where two brothers killed their step-brother, allegedly over a property dispute, the government was not convinced entirely about the evidence of the motive and commuted the sentence by way of abundant caution (P. Venkatramiah, 1961).
In a number of cases, the government has even gone so far as to conclude that the evidence on record does not show the real facts of the case, thereby presuming other reasons for the offence.
Legal defence and so on: The competence and adequacy of the legal defence has been a key factor for commutation of sentences in several cases. In a case where a man killed his wife (and son) suspecting her of infidelity, the executive noted that the defence case was not properly thought of and a wrong defence was made out on his behalf. This resulted in the petitioner being found guilty by the court despite strong comments on the inadequate defence of the petitioner. The Minister of State for Home Affairs, also finding that witnesses for the prosecution were not even properly cross-examined, recommended commutation of the sentence, noting that he was amazed at the utter incompetency of the defence put forward on behalf of the petitioner (Haridas Ramdas, 1958).
In a number of other cases also, poor legal defence made available to the prisoner has led to commutation. Commutations have also been granted where the role of other institutions, including the prosecution and the High Court, has been suspect.
Extinction of the family line: Continuation of family line is another factor that has influenced the executive to commute death sentences. This appears to have come in as early as 1956 when the sentence of one Angrez Singh was commuted with a view to saving the family from virtual extinction.
In another case, where one brother murdered his parents, the executive commuted the sentence to avoid magnifying the loss of the remaining brothers, while in another, a husband who killed his wife had his death sentence commuted to prevent the children from becoming guardian-less. The eventuality of an old man becoming sonless was sufficient to commute the sentence in another case. Where two brothers were sentenced to death, such a rationale effectively became a lottery since, despite identical roles in the murder, one brother was sentenced to life while the other was hanged (Bharwad Mepa Dana, 1960).
General security considerations: Impact on law and order has often been taken into account as a factor by the executive in the decision-making process. In Sawai Singhs case (1985), the mercy petition was rejected since the victim was a policeman and commutation would not be in the interests of maintaining the morale of the police. References to the general law and order situation in a State were a factor in deciding a number of other cases as well.
Broad political situation: Dinubhai Bhimbhai Desais (1960) was a prominent case in which the petitioner killed his wife over a dowry dispute. Although the death sentence was commuted because the President raised concerns about the lack of proof of the motive, another factor that appeared to have influenced the decision was the nearly 1,500 petitions sent by persons across Gujarat pleading for mercy in the case. Most of the petitioners saw the death sentence as an affront to the new Gujarat State and identity.
A more obvious case was that of the assassins of the former Chief of the Army Staff, General A.S. Vaidya, where the Maharashtra government left the decision to the Centre given that the petition raised political issues relating to developments in Punjab.
Identity of victim: Although appearing to be a vital consideration in practice, this is one factor that is rarely mentioned on the record. A rare exception was a case where the Home Minister of then Madras State sought the rejection of a mercy petition as the victim was the mother of one of the Deputy Directors of Education in the State and the case had created a lot of excitement locally. The petition was rejected by the Governor of Madras, but it was commuted by the President largely on grounds of insufficient evidence.
In two other cases, victims family members officially played a vital role. In the petition filed by one Parmatma Saran (1961), a letter from the father of the victim in favour of mercy played a major role in the governments decision to commute the sentence, while in proceedings relating to Dhananjoy Chatterjee (1994), a letter from the father of the victim asking for the rejection of the petition and the execution of the accused was relied upon by the MHA in recommending rejection in its summary for the Home Minister.
Cases such as those of Mohammad Afzal are not easy for the government to decide. It has to keep in mind a number of factors, implications and complications before making a final decision. Although precedents may have limited value in mercy petitions, there is little doubt that many of the above points and cases discussed are relevant with respect to Afzals petition. Questions of evidence, the quality of legal defence and the broader political implications in Kashmir have all been raised in petitions filed by Afzal and by others on his behalf. The above cases show that each of the factors has already been a consideration for mercy in the past.
On the other hand, the case of another Kashmiri, Maqbool Butt, also shows us the ugly face of the mercy power. Butt, the founder and former leader of the separatist Jammu and Kashmir Liberation Front, had his petition pending for seven years. He was executed in 1984 after his petition was rejected apparently as revenge for the abduction and murder of an Indian diplomat in the United Kingdom by the Kashmir Liberation Army.
In Afzals petition many facts have also been raised in support of the plea for a fresh investigation or inquiry into the attack on Parliament House. Such an investigation would not be unprecedented.
In a number of mercy cases, both State and Central governments found it fit to seek fresh inquiries from various State criminal investigation departments. In at least three cases in the 1960s, such re-investigations at the mercy stage led to commutation (Avtar Singh, 1961; Baij Nath Puri, 1963; and Har Charan, 1967).
Even if the government rejects Afzals petition, the President can assert her moral authority as the constitutional head of state. Although, effectively, the government makes the mercy decision, the President is not a mere rubber stamp. She has an opportunity to return the petition, asking for the governments recommendation to be reviewed. This has been exercised by many Presidents in the past, including Rajendra Prasad, S. Radhakrishnan and Zakir Hussain.
Abdul Kalam also returned a large number of cases for reconsideration. Further, although the President cannot seek reconsideration more than once, President K.R. Narayanan showed that there was no compulsion to sign the rejection of the petition either.
On the other extreme lies the judicial murder of Kehar Singh. Following the assassination of Prime Minister Indira Gandhi, Kehar Singh was convicted of being involved in the conspiracy (along with the two assassins) on the basis of extremely flimsy circumstantial evidence. V.M. Tarkunde, former Judge of the Bombay High Court, remarked that the evidence was not sufficient even to hang a dog. Instead of exercising his moral authority and powers for seeking reconsideration, President R. Venkataraman allowed the mercy petition to be rejected without any questions or objections.
Although he never completely admitted to this lapse, in his autobiography the former President suggests that the decision was politically motivated, noting that Kehar Singhs case raised a few queries in my mind should not the President have discretion to examine any extenuating circumstance and alter the death sentence without the advice of the government? How else can prejudice or partisanship be prevented? (Page 249-250, My Presidential Years).
President Pratibha Patil must bear these facts in mind when she examines Mohammad Afzals petition.
Bikram Jeet Batrais a lawyer and researcher and is at present writing a book on the death penalty in independent India.
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