By – Mani Meghana Godavarthi

Abstract

The article explores the constitutional boundaries of executive mercy powers under Articles 72 and 161 of the Constitution of India. It emphasises the imperative for their timely exercise by considering Article 21 (the right to life). It focus is on the implications of procedural delays on the fundamental rights of death row inmates because prolonged delays in deciding mercy petitions can amount to inhuman treatment, violating Article 21. It also highlights how the judiciary has stepped in to impose procedural safeguards, ensure timely disposal of mercy petitions, and uphold the constitutional mandate of humane treatment. 

Introduction

Article 72(1)(c) of the Constitution of India empowers the President of India to grant, inter alia, pardons in cases where the sentence is a death sentence. This power has been extended to the Governor of a State under Article 161, albeit limitedly as the latter cannot pardon a death sentence but suspend or commute it. These two Articles do not mention any guidelines for exercising this power. India is a retentionist country, and it is not one of the 85+ countries that have abolished the death penalty. It can be argued that the death penalty violates Article 21 (the right to life) of the convicts, but it cannot stand as the same Article specifies that a person can be deprived of their life by the procedure established by law. The constitutionality and the morality of the death penalty have been widely debated, but there is no resolution to this debate in the near future because the Constitution acts as an implicit enabler, facilitating such procedures. The rights of the convicts who are awaiting their execution in the present are often overlooked in these. This article addresses the issue of delay in mercy petitions that violate the convict’s right to life and dignity under Article 21.

Executive Mercy Powers 

Only the President of India can pardon a death sentence. This may seem to allow the President to be the ultimate judge of life, but the Supreme Court in the case of Maru Ram v. Union of India (1980) clarified that the powers under Articles 72 and 161 of the Constitution are meant to be exercised by the Central or State Governments, not personally by the President or Governor. The Head of State must act based on the advice of the appropriate Government. The right to grant mercy is a constitutional prerogative of the President, meant to further justice and public welfare. It is subject to the principles of fairness. When a clemency or mercy petition is rejected, it can come under the scope of judicial review, albeit within some limit. The case of Maru Ram v. Union of India had the Supreme Court also declare that the power to grant pardons for death sentences is awarded to the highest functionary of the Union. It must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter. 

In the case of Kehar Singh and Anr. v. Union of India, the Supreme Court held that there has to be another degree of protection in the matter of life and personal liberty. The higher degree of protection is entrusted to the public through their elected representatives. 

Delay, Mental Anguish, and Violation of Article 21

Judicial Review is possible when there is rejection or acceptance of the Mercy Petition. Yet, what about the delay in processing and executing such sentences? The imposition of the death penalty is intertwined with the fundamental right to life and dignity under Article 21 of the Constitution. The Supreme Court has upheld the constitutionality of the death penalty in the ‘rarest of rare’ cases. Yet, it has also recognised that procedural delays and the psychological suffering caused by the sentence can independently constitute grounds for commutation of the sentence.

In the case of Triveniben v. State of Gujarat, the Supreme Court examined the rights of prisoners, declaring that those facing the death penalty can file a petition under Article 32 of the Constitution if there are unnecessary delays in the execution of their sentence. This is because such delays have a dehumanising effect on the convicts; the psychological impact is far from speculative. Death row inmates often endure years of isolation, uncertainty, and fear, amounting to what has been termed ‘death row syndrome’. This deteriorating mental state undermines the very notion of dignity. The inmates face perpetual anxiety, even by the convict’s family outside the jail walls, who are awaiting the loss of a loved one. The Deathworthy survey by Project 39A in 2021 found that 62.2% of the death row inmates interviewed had mental illness, and 11% had intellectual disability. The research noted that the proportion of persons with mental illness and intellectual disability on death row was overwhelmingly higher compared to the prevalence of such illnesses in the community population. 

Until 2014, there were conflicting judgments regarding whether a death row inmate is entitled to seek commutation. The Supreme Court in the case of Shatrughnan Chauhan & Anr v. Union of India commuted the death sentences of two prisoners to life imprisonment due to excessive delay that caused chronic psychotic illness. It also acknowledged that a convict is under unbearable mental agony after confirmation of the death sentence. This is an important landmark judgment because it reaffirmed the fundamental rights, especially Article 21, of prisoners. India is a state party to the International Covenant on Civil and Political Rights (ICCPR). Article 7 prohibits torture, and cruel, inhumane, or degrading treatment or punishment. Delays in execution of the sentences and deciding the mercy petitions can inflict mental anguish, because the accused are awaiting death rather than life. These conditions constitute mental torture, falling under the ambit of Article 7 of ICCPR, violating both Article 21 and India’s obligations under ICCPR. 

Extended Scope of Article 21 & Timely Disposal Mandate

It is uncontested that the scope of Article 21 applies to a death row inmate until execution, but there were always going to be issues with the timely enforcement of sentences. Hence, the Supreme Court, in State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr., upheld that Article 21 extends until execution, and addressed the problem of delay in executing death sentences and issued directions to tackle it. It reaffirmed the right of the convict to approach the Supreme Court under Article 32 if there is significant physical and psychological stress that the person faces due to prolonged delays in deciding mercy petitions. However, it also said that inordinate delay can only be assessed on a case-by-case basis. The Executive is directed to promptly process the mercy petitions invoking Articles 72 or 161 of the Constitution and forward the petitions along with the requisite documents to the concerned constitutional functionary without undue delay. Procedurally, the Supreme Court held that sufficient notice must be given to the convict before issuing a warrant for the execution of the death sentence by the Sessions Court. Such a warrant for the execution of the death sentence must specify the exact date and time of the execution, and a copy of the warrant must be immediately supplied to the convict. If the convict is not represented by an advocate, legal aid must be provided to them after issuing a notice, but it should be before issuing a warrant of execution.

Conclusion

The constitutional framework governing mercy powers under Articles 72 and 161 is not grounded in unaccounted discretion but in democratic accountability, fairness, and the overarching protection of fundamental rights, which the Supreme Court, time and again, has addressed. The evolving jurisprudence of the Supreme Court has reined in constitutional limits and duties with Article 21, which guarantees the right to life and dignity until the moment of execution. The empirical evidence of widespread mental illness among death row inmates underscores the constitutional and moral imperative for a swift mercy petition process, as uncertainty causes mental anguish and inaction violates Article 21. These delays not only dehumanise prisoners but also affect the legitimacy of the criminal justice system. The comprehensive guidelines issued in Kokade provide the administrative framework necessary to implement constitutional safeguards effectively. Ultimately, the constitutional scheme ensures that even those awaiting execution retain their fundamental dignity and rights under Article 21. The mandate for timely disposal is not merely procedural but reflects the constitutional commitment to treating all persons with humanity and respect for inherent dignity until their last breath.

Author’s bio

Mani Meghana Godavarthi is a third-year BBA LLB student at Jindal Global Law School.

Image Source: The Cruelty of Clemency: Mercy Petitions and the Abolitionist Discourse