5,106 mercy petitions filed independence, 69% are rejected

ACHR calls for the establishment of a Presidential Panel on Mercy Petitions

New Delhi: “The Status of Mercy Petitions in India” highlights that even if the Law Commission of India’s recommendations to “abolish death penalty for all crimes other than terrorism related offences and waging war” were to be implemented in toto, death penalty shall still remain in the statute books in India. The report was released at a function in New Delhi addressed by Justice A P Shah, former Chairman of the Law Commission of India, Mr Satyabrata Pal, former member of the National Human Rights Commission, Mr Cesare Onestini, Deputy Head of the Delegation of European Union to India and Mr Suhas Chakma, Coordinator of the National Campaign for Abolition of Death Penalty in India.

The report for the first time discloses that a total of 5,106 mercy petitions were filed by death row convicts from 1947 to 2015 (as on 05.08.2015). Of these, 3,534 mercy petitions or 69% were rejected while death sentences in 1,572 mercy petitions or 31% were commuted to life imprisonment. Since his swearing on 25.07.2012, President Pranab Mukherjee has considered 28 mercy petitions involving 34 death row convicts as on 07.09.2015.[1]  Out of the 28 cases, at least 13 cases were defended by legal aid lawyers during trial and appeal stages and out of these 13 cases defended by the legal aid lawyers, 11 were rejected and two are still pending.[2]

The instructions for dealing with mercy petitions issued by the Government of India are inherently against the death row convicts such as one week time to file mercy pleas following the Supreme Court judgement and are routinely violated. Similarly, the broad guidelines for granting mercy adopted by the Ministry of Home Affairs are routinely violated. All these have made the decisions of the President on granting mercy poorer than many Superintendents of Prisons and brought so much disrepute that the President has lost the moral authority and his decisions no longer evoke the necessary confidence that they meet the tests of due care and diligence.

In order to reduce death penalty in India and restore the majesty of the President of India, Asian Centre for Human Rights recommends (1)  establishment of a Presidential Panel on Mercy Petitions comprising eminent citizens, inter alia, to (i) vet the advice of the Ministry of Home Affairs on mercy petitions to ensure due care and diligence for compliance with instructions for dealing with mercy petitions, the guidelines for granting mercy, judgments of the Supreme Court and respect for stare decisis and other related international human rights standards on death penalty; (ii) review the instructions and guidelines on mercy petitions from time to time to ensure compliance with the Supreme Court judgements and international human rights standards on death penalty; and (iii) advise the President and the Government of India on the mercy petitions; (2) increase the time for challenging the rejection of mercy petitions by the President to 90 days; and (3) Revise the guidelines for granting mercy after taking into account the standards set by the Supreme Court of India and the United Nations and in addition to existing standards on prohibition on execution of juveniles, pregnant women and those who are mentally unsound, ACHR recommends 10-Point Recommendations on Consideration of Mercy Petitions for Reduction of Death Penalty in India.

Background
1. Statistics on mercy pleas
That there are no accurate records of the mercy petitions considered since India’s independence shows the callousness of the Government of India on the question of life and death and the respect for human dignity. In 2013, the Government of India informed the Supreme Court that over 300 mercy petitions were filed before the President by convicts on death row between 1950 and 2009. The Government of India was obviously unaware that it had earlier informed the Rajya Sabha, upper house of Indian Parliament, on 29.11.2006 that 1,261 mercy petitions were disposed of by the President between 1965 and 2006 alone! Other studies indicated that about 3,796 mercy petitions were filed with the President between 1947 and 1964. Information collated by Asian Centre for Human Rights (ACHR) shows that since India’s independence, a total of 5,106 mercy petitions were filed by death row convicts from 1947 to 2015 (as on 05.08.2015). Of these, 3,534 mercy petitions or 69% were rejected while death sentences in 1,572 mercy petitions or 31% were commuted to life imprisonment.

The Government of India has issued instructions for dealing with mercy petitions and adopted broad guidelines for granting mercy. The Supreme Court in a number of judgments has held that the decisions of the President on mercy petitions did not meet the test of due care and diligence with respect to compliance with the instructions for dealing with mercy petitions and guidelines for granting mercy.

2. Violations of the instructions for dealing with mercy petitions
Rule I of the instructions of dealing with mercy petition provides for “submission of a mercy petition for mercy within seven days after and exclusive of the day on which the Superintendent of Jail informs him of the dismissal by the Supreme Court of his appeal”. Considering that majority of the death row convicts are poor and illiterate and held in solitary confinement, most of them are unlikely to be able to collate all the necessary documents before filing mercy petitions. There is no provision for providing legal aid to death row convicts to prepare the mercy petitions. Consequently, mercy petitions filed fail to reflect the grounds which ought to be considered for granting clemency and the condemned prisoners depend on the predilections of injudicious officials of the Ministry of Home Affairs (MHA). One week time to file mercy petition as provided in Rule I is inherently against the death row convicts.

Rule V of the instructions states that “in all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the concerned authorities, as expeditiously as possible, along with the records of the case and his or its observations in respect of any of the grounds urged in the petition”. However, mercy petitions are often forwarded without all the records, in piecemeal or one by one. In fact, mercy petitions of Suresh and Ramji of Uttar Pradesh and Praveen Kumar of Karnataka were rejected without considering the trial court judgments which are the basic documents to assess mercy petitions. There have been cases of suppression of facts from the President by the Ministry of Home Affairs.

Rule VI of the instructions to communicate the orders of the President are routinely violated. As the Shantrughan Chauhan judgment shows, in the case of Suresh and Ramji, on 29.07.2004 the Governor of Uttar Pradesh rejected the mercy petitions but they were never informed about the same until 20.06.2013. In the case of Praveen Kumar, on 26.03.2013 the President had rejected the mercy petition but he had not received any communication till the judgment of the Supreme Court on 21.01.2014. In the case of Gurmeet Singh, on 05.04.2013 he heard the news reports that his mercy petition was rejected by the President but till the judgment of the Supreme Court on 21.01.2014 he had not received any official written communication about the rejection of his mercy petition.

Further, when the condemned prisoners are informed about the rejection of their mercy petitions, there is considerable delay. In the case of Jafar Ali of Uttar Pradesh on 22.06.2013 the prison authorities were informed vide letter dated 18.06.2013 that the President rejected the condemned prisoner’s mercy petition but it was only on 08.07.2013 that he was informed of the rejection. In the case of Maganlal Barela, on 16.07.2013 the President rejected his mercy petition but he was orally informed on 27.07.2013 and was neither furnished with any official written communication regarding the rejection of his mercy petition by the President nor was he informed that his mercy petition had been rejected by the Governor. With respect to Shivu and Jadeswamy of Karnataka, on 27.07.2013 the President rejected their mercy petitions but they were informed only on 13.08.2013. In the case of Simon, Gnana Prakash, Madhiah and Bilavendra of Karnataka, the President rejected their mercy petitions on 08.02.2013 but they were informed only orally and the prison authorities refused to hand over the copy of the rejection letter to them or to their advocates despite obtaining their signatures.

The failure to notify the rejection of a mercy petition on time or notify at all, has direct implications on the right to challenge the rejection of mercy petition by the President before the Courts and subsequent execution of the condemned prisoners. As per the Prison Manuals, which vary from State to State, execution can be scheduled from one day to 14 days of informing the prisoner of rejection of mercy petition. This was blatantly violated in the case of Afzal Guru who was denied the opportunity to challenge the rejection of his mercy petition by the President and was executed on 09.02.2013 in secrecy. The family members of Guru were not informed about the rejection of the mercy petition and about his scheduled execution. The official communication dated 06.02.2013 informing the scheduled execution of Guru was received by his family members two days after his execution at Tihar Jail, Delhi.

3. Violations of the broad guidelines for granting mercy
The Ministry of Home Affairs has framed broad guidelines for granting mercy to death row convicts. These guidelines are violated at will.

The MHA in complete disregard for the guideline (i) relating to “personality of the accused” recommended rejection of mercy petitions of Sundar Singh and Manganlal Barela who were declared as mentally unfit by doctors.

With respect to guideline (ii) “cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction”, Devender Pal Singh Bhullar was sentenced to death by majority decision of 2:1 by the Supreme Court, the first appellate court under the Terrorist and Disruptive Activities (Prevention) Act, (TADA). The presiding judge of the bench, Justice M B Shah in a dissenting judgment set aside conviction of Bhullar as the reliability of evidence was questionable and ordered his release. Yet, the MHA recommended rejection of his mercy petition and the President was too compliant.

With respect to Guideline (iii) “cases where it is alleged that fresh evidence is obtainable mainly with a view to seeing whether fresh enquiry is justified”, Surender Koli, accused of rape and murder of several children who went missing between 2005 and 2006 from Nithari Village in Gautam Budh Nagar district, Uttar Pradesh, alleged that he was tortured by the police to extract confession and was threatened with more torture if he did not repeat his confession before the magistrate. In his letter to the Supreme Court, Koli mentioned that the magistrate failed to notice the telltale signs of torture on him. While the Supreme Court could not have acted as a trial court to consider the fresh allegations made by Koli before it, the President while considering his mercy petition ought to have ensured the respect for guideline “relating to cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh enquiry is justified”.

With respect to guideline “(iv) where the High Court has reversed on appeal an acquittal by a Session Judge or has on appeal enhanced the sentence”, the Ministry of Home Affairs recommended rejection of mercy petitions of death row convicts in cases where the appellate courts had enhanced the life sentence to death sentence. Simon, Gnana Prakash, Madhiah and Bilavendra were sentenced to life imprisonment by the designated TADA Court but the Supreme Court suo motu enhanced their sentence to death. The President rejected their mercy petitions on 08.02.2013 despite the Supreme Court as the first and the only appellate court under the TADA had enhanced the sentence. Similarly, Sonia Choudhary and Sanjeev Choudhary of Haryana were convicted in May 2004 of the murder of eight relatives in August 2001 and sentenced to death. On appeal, the Punjab and Haryana High Court commuted their sentences to life imprisonment in April 2005 but the Supreme Court enhanced the life sentence into death penalty in February 2007. Their mercy petitions were rejected by the President on 29.06.2013.

With respect to guideline (v) “any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench”, there are a number of cases such as Gurmeet Singh, Saibanna Nigappal Natikar and B A Umesh, where difference of opinion in the Bench of High Court judges necessitated reference to a larger Bench. The President once again had been too compliant to reject their mercy petitions.

In fact, the government of India has developed its unwritten guideline to reject all mercy petitions of those convicted of terror offences.

Equally disturbing is the blatant violations of the orders of the Supreme Court by the Government of India. The President should ideally be the first person to ensure respect for the judgments and the rule of stare decisis i.e. law established by previous decisions of the superior courts. However, while rejecting mercy petitions, the President repeatedly violated the courts’ rulingby failing to consider violations of the court directions like prohibition of solitary confinement, grant of mercy in the cases already declared per incuriam by the Supreme Court, consider “delay” as a ground for granting mercy after the Shatrughan Chauhan judgment (Holiram Bordoloi) and consult with the Presiding Judge as per Section 432(2) of the Criminal Procedure Code while deciding on mercy petitions despite specific direction in the case of Devender Pal Singh Bhullar.

While the political decision to reject mercy petitions of all terror convicts is all pervasive, in order to examine arbitrariness and non-application of mind, ACHR examined 41 cases of mercy petitions considered by the President. These are broadly categorised into six categories i.e. (1) cases of murder of spouse and children, (2) cases of murder by servants for gains; (3) cases of murder due to enmity, (4) cases of murder by relatives, (5) cases of rape and murder of minor girls, and (6) cases of kidnapping followed by murder for gains. In all these cases, the President gave contradictory opinion with respect to the cases with similar facts and circumstances. That President Kalam recommended commutation of death penalty of Mahendra Nath Das while his successor President Patil was made to act on the recommendation to rejection of the mercy petition of the same Mahendra Nath Das shows the grave arbitrariness in granting mercy.

The failure to ensure respect for the instructions for dealing with mercy petitions and the guidelines for granting mercy are caused either by incompetence leading to non application of mind by the officials of the Ministry of Home Affairs or belief of the officials of the MHA in death penalty as the panacea for all crimes, which seriously hampers independent and impartial consideration of the mercy petitions. This failure has made the decisions of the President poorer than many Superintendents of Prisons and brought so much disrepute that the President has lost the moral authority and his decisions on mercy petitions no longer evoke the necessary confidence that the decisions taken by the President meet the tests of due care and diligence for compliance with the instructions for dealing with mercy petitions, the guidelines for granting mercy, judgments of the Supreme Court and respect for stare decisis.

In order to reduce death penalty in India, Asian Centre for Human Rights recommended
1.  establishment of a Presidential Panel on Mercy Petitions comprising eminent citizens, inter alia, to (i) vet the advice of the Ministry of Home Affairs on mercy petitions to ensure due care and diligence for compliance with instructions for dealing with mercy petitions, the guidelines for granting mercy, judgments of the Supreme Court and respect for stare decisis and other related international human rights standards on death penalty; (ii) review the instructions and guidelines on mercy petitions from time to time to ensure compliance with the Supreme Court judgements and international human rights standards on death penalty; and (iii) advise the President and the Government of India on the mercy petitions;

2. increase of the time for challenging the rejection of mercy petitions by the President to 90 days;

3. Revising the s guidelines for granting mercy after taking into account the standards set by the Supreme Court of India and the United Nations and in this regard, ACHR, in addition to existing standards on prohibition on execution of juveniles, pregnant women and those who are mentally unsound, recommends the following 10-Point Recommendations on Consideration of Mercy Petitions for Reduction of Death Penalty in India:

Principle 1.  The consequences of inordinate and unexplained delay in the disposal of mercy petitions of condemned prisoners should be considered as grounds for granting mercy, i.e. the commutation of the death sentence into life imprisonment.

Principle 2. Possibility of reform of the condemned prisoner should be considered as a ground for granting mercy and that the State must prove that the condemned prisoner cannot be reformed.

Principle 3. A dissenting judgment at any stage of the proceeding before the Court should be a ground for granting mercy.

Principle 4. Denial of the right to appeal because of the enhancement of punishment by the Supreme Court in the form of death penalty should be a ground for granting mercy.

Principle 5. Conviction based on self-incrimination should be a ground for granting mercy.

Principle 6. Inability to defend oneself by hiring own lawyer as reflected from appointment of amicus curiae or lawyers from legal aid services by the Courts in all stages of the proceedings should be a mitigating ground for granting mercy.

Principle 7. Conviction in cases declared as per incuriam should be a ground for granting mercy.

Principle 8. Imposition of mandatory death penalty should be a ground for granting mercy.

Principle 9. Death penalty imposed solely based on circumstantial evidence should be a ground for granting mercy.

Principle 10. Making orphan should be a ground for granting mercy.

[1]. http://rashtrapatisachivalaya.gov.in/pdfs/mercy.pdf

[2]. The 11 cases defended by legal aid lawyers whose mercy petitions were rejected by the President Mukherjee include Md. Ajmal Kasab, Saibanna Ningappa Natikar, Mohd. Afzal Guru, Gurmeet Singh, Praveen Kumar, Sundar Singh, Maganlal Barela, Ajay Kumar Pal, Holiram Bordoloi, Surender Koli, Shivaji Shankar Alhat while two cases of Mohan Anna Chavan and Jeetendra @ Jitu Nainsingh Gehlot are pending before the President.

(Source: Press Release from ACHR issued on 09 October 2015.)