Mercy Petition: Pardoning Power of President & Governor

President of India Droupadi Murmu has rejected the mercy petition of Mohammad Arif alias Ashfaq (Pakistani national) who is a member of Lashkar-e-Taiba. He was sentenced to death in the December 2000 Red Fort attack where three Army personnel were killed.

What is Mercy Petition?

1. A mercy petition is a formal request made by someone who has been sentenced to death or imprisonment seeking mercy from the President or the Governor, as the case may be.
2. The idea of Mercy Petition is followed in many countries like the U.S., the U.K, Canada, and India Constitutional Provisions related to Mercy Petitions to the President.

Process of making a Mercy Petition

1. There is no statutory written procedure for dealing with mercy petitions, but in practice, after extinguishing all the reliefs in the court of law, either the convict in person or his relative on his behalf may submit a written petition to the President.
2. The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.

Constitutional Provisions related to Mercy Petitions

1. Article 72 of the Constitution empowers the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence –

• In all cases where the punishment or sentence is by a Court Martial.
• In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends.
• In all cases where the sentence is a sentence of death.

2. Similarly, the power to grant pardon is conferred upon the Governors of States under Article 161 of the Constitution of India.

1. Earlier, the Governor cannot pardon the death sentence that was the exclusive power of the Indian President.
2. But in August 2021, the Supreme Court held that the Governor of a State can pardon prisoners; including death row ones, even before they have served a minimum of 14 years of a prison sentence.

Feature	Article 72 (President)	Article 161 (Governor)	Key Differences
Scope of Power	Extends to offenses against laws relating to matters under the executive power of the Union (central government).	Extends to offenses against laws relating to matters under the executive power of the State.	President's power is broader in scope, covering Union matters, while Governor's is limited to state matters.
Court Martial Cases	Yes, can pardon/commute sentences in cases where punishment is by a Court Martial (military court)	No, does not have the power to pardon/commute sentences in Court Martial cases	President holds exclusive power in cases involving the military.
Death Sentence Cases	Yes, can pardon/commute death sentences	Yes, can pardon/commute death sentences	Both have the power to grant mercy in death penalty cases.
Minimum Sentence Served	No specific requirement for minimum sentence served before pardon	No specific requirement for minimum sentence served before pardon (as per 2021 Supreme Court ruling)	Both can pardon even before a minimum sentence is completed.
Judicial Review	Pardoning power is subject to judicial review on limited grounds (e.g., mala fide exercise, non-application of mind)	Pardoning power is subject to judicial review on similar grounds as the President's power	Both powers are not absolute and can be reviewed by the courts, although the scope for review is limited.

Grounds for filing Mercy Petition

1. The mercy or clemency is granted on the grounds based on his health, physical or mental fitness, and his family’s financial conditions considering if he is the only sole earner of bread or butter or not.

• The Supreme Court in cases such as Shatrughna Chauhan vs Union of India (2014) held that Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive.

Judicial Review:

1. President must act based on the advice of Council of Ministers in mercy petititons (Maru Ram vs UOI case ,1981).
2. In Kehar Singh case (1988), the Supreme Court examined the pardoning power of the President and laid down the following principles:
   1. The petitioner for mercy has no right to an oral hearing by the President: 
   2. The President Can examine the evidence afresh and take a view different from the view taken by the court. 
   3. The power is to be exercised by the President on the advice of the union cabinet. 
   4. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President. 
   5. The exercise of power by the President is not subject to judicial review except where the presidential decision is arbitrary, irrational, mala fide or discriminatory. 

What are the Different Types of Pardoning Power?

Type of Pardoning Power	Description	Example
Pardon	Completely absolves the convict of the crime, erasing the conviction and all associated penalties.	The President grants a pardon to a person wrongly convicted of treason.
Commutation	Substitutes a harsher punishment with a lighter one	The President commutes a death sentence to life imprisonment.
Remission	Reduces the period of the sentence without changing its nature	The Governor remits one year from a two-year sentence of rigorous imprisonment.
Reprieve	Temporarily postpones the execution of a sentence, usually for a short period.	The President grants a reprieve to a condemned prisoner to allow time for the filing of a mercy petition
Respite	Similar to reprieve, but for a longer period and often for medical reasons.	The Governor grants a respite to a terminally ill prisoner to allow them to spend their final days at home.

What do the Laws of other Countries Provide?

1. USA: The Constitution of America gives the President the similar powers to grant reprieves or pardon for offences under Federal law, except in cases of impeachment. However, in cases of violation of state law, the power has been given to the concerned Governor of the state.
2. UK: In the UK, the Constitutional monarch can pardon or reprieve for offences on ministerial advice.
3. Canada: The National Parole Board under the Criminal Records Act is authorised to grant such reliefs.