Mercy petition

The Supreme Court (SC) of India rejected the Central Government’s recommendation that the court should wait until the President made a judgement on Rajiv Gandhi assassination case convict mercy plea, which was forwarded to him by the Tamil Nadu Governor.

What is a ‘mercy petition’?

A mercy (or clemency) petition is a plea that a condemned can file to the President of India or the Governor of a state asking him/her to change his/her death sentence to life imprisonment.

Powers of President and Governor –

• Article 72: Under this, the President has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. S/he can do so in cases where the punishment or a sentence is for an offence under any law relating to a matter to which the executive power of the Union extends.
• Article 161: It grants the Governor the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the saentence. The governor can do so for any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Difference between pardoning powers of President and Governor –

• The Governor cannot pardon a death sentence. (The President has the power of pardon a death Sentence).
• The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial. However, the President can do so.

SC’s interpretation of Governor’s powers in this regard –

• Pardoning powers overrides Section 433A – The Governor’s power to pardon overrides Section 433A of the Code of Criminal Procedure (CrPC) – which mandates that a prisoner’s sentence can be remitted only after 14 years of jail. Thus, Section 433-A does not affect the constitutional power conferred on the President or Governor under Articles 72 or 161 of the Constitution.
• Pardoning powers are not discretionary – The power of a Governor to pardon a prisoner under Article 161 is actually exercised by the State government and not the Governor on his own. This means, the advice of the appropriate government binds the Head of the State.

Recent judgement –

• The Centre had missed the obvious question posed by the court – Whether the Governor has the jurisdiction to refer the mercy petition to the President in the first place?
• The President and Governor exercised two distinct powers of mercy under Articles 72 and 161, respectively. The former exercised his power under the aid and advice of the Council of Ministers at the Centre while the latter depended on the State Council of Ministers.
• The Governor was bound by the aid and advice given by the Tamil Nadu Council of Ministers under Article 161 to release Perarivalan, who had already spent more than 30 years of his life sentence.
• The Governor has no power to transfer the mercy petition to the President because the President had no role in this case under the Constitution.
• In case the Governor has a different opinion, he has to send it back to the Tamil Nadu Council of Ministers.
• The question whether the Governor was right in referring the State Cabinet’s wish to the President, instead of exercising his duty under Article 161, has to be decided by the court and not by the President.