New Delhi: In order to reduce executions in India with the aim for its final abolition of death penalty, Asian Centre for Human Rights (ACHR) while releasing its 104-page report, “Arbitrary On All Counts: Consideration of mercy pleas by the President of India” (http://www.achrweb.org/reports/india/arbitraryonallcounts.pdf), called for the establishment of “Advisory Committee on Mercy Petitions” consisting of independent and eminent persons for vetting the advices of the Ministry of Home Affairs to the President of India with respect to the rejection of mercy pleas and adoption of “Guidelines for Consideration of Mercy Pleas by the Governors of the States and the President of India”.
The report prepared based on analysis of the decisions of the President of India in 41 cases of mercy pleas involving 65 condemned prisoners called for the establishment of an “Advisory Committee on Mercy Petitions” given the current practice of violations of the existing guidelines on the mercy pleas adopted by the Ministry of Home Affairs (MHA), laws based on stare decisis, natural justice, equality, and past precedents set by the former Presidents in cases of similar facts and circumstances by the MHA while advising the President.
Describing President Pranab Mukherjee as the most arbitrary in rejecting the mercy pleas since the 1980 Bachan Singh judgment, Asian Centre for Human Rights stated that President Mukherjee had rejected mercy pleas of mentally unfit death row convicts Sundar Singh on 31.03.2013 and Maganlal Barela on 16.07.2013 in clear violation of the Guidelines of Mercy Pleas of the Ministry of Home Affairs relating to prohibition on execution of mentally unfit death row convicts.
Though Rule V of the Mercy Petition Rules states that all the records of the case be sent along with the mercy plea for examing clemency, President Mukherjee had rejected the mercy plea of Suresh and Ramji of Uttar Pradesh on 08.02.2013 and Praveen Kumar of Karnataka on 26.03.2013 without examining the judgements of the trial courts which were respectively in Hindi and Kanada. The President’s office had requested for translated versions of these trial court judgements but the mercy petitions were rejected before receiving the translated copies of these judgements.
The President of India should ideally be the first person to ensure respect for the stare decisis i.e. law established by previous decisions of the superior courts. However, President Mukherjee has consistently demonstrated the lack of respect for stare decisis and had rejected mercy pleas such as of Saibanna Ningappa Natikar on 04.01.2013 despite the Supreme Court declaring Saibanna’s case as per incuriam by judgement dated 13.09.2009 and the same being brought to his notice by 14 former judges of the Supreme Court and High Courts.
Asian Centre for Human Rights stated that it had filed a mercy petition with the President Mukherjee on 6 February 2014 to commute the death sentence of Holiram Bordoloi of Assam, among others, on the ground of unexplained and inordinate delay as enunciated by the Supreme Court in the case of Shatrughan Chauhan & Anr Vs. Union of India & Others. Vide Shatrughan Chauhan judgment, the Supreme Court commuted the death sentences on 15 death-row convicts to life imprisonment, inter alia, on the ground of delay ranging from six and half years to twelve and half years. Since Bordoloi filed the mercy plea in 2005 and his mercy plea was not considered for the last eight years without any reason, he deserved commutation as per the Shatrughan Chauhan judgment. However, President Mukherjee hurriedly rejected Bordoloi’s mercy plea on 05.07.2014 without considering the applicability of the Shatrughan Chauhan judgment and also without responding to the notice of the National Human Rights Commission to explain the inordinate delay in considering the mercy plea of Bordoloi.
A condemned prisoner is equally entitled as other condemned prisoners to the right to equality and non-discrimination even during the processing of mercy petition, including disposal and beyond. Yet, President Mukherjee had picked up the mercy pleas of Ajmal Kasab and Mohd. Afzal Guru out of the queue, rejected the same and they were hanged ahead of the other condemned prisoners.
ACHR also called for revising the existing broad guidelines of the MHA to consider clemency and adoption of “Guidelines for Consideration of Mercy Pleas by the Governors of the States and the President of India”. ACHR recommended the following 10 principles for inclusion in the proposed Guidelines:
Principle 1. The consequences of inordinate and unexplained delay in the disposal of mercy pleas 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.
Principle 3. A dissenting judgement at any stage of the proceedings 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 based on judgements which have been held as per incuriam by the Supreme Court 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.
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