The Quality of Mercy

On the first day of this year, President Pranab Mukherjee accepted the mercy petitions of four death-row convicts found guilty of participating in the Bara massacre, in which 34 dominant-caste men were murdered by Maoist militants in 1992 following several massacres of Dalits in Bihar. In doing so, Mukherjee commuted their death sentences to life imprisonment. Reports in the Indian Express and on the website The Wire cited unnamed official sources as saying that Mukherjee did so in defiance of the recommendation of the council of ministers, which, with mercy petitions, acts through the ministry of home affairs. These sources also said that, in September, Mukherjee had similarly rejected the ministry’s advice when he commuted the death sentence of another convict, Jitendra Nainsingh Gehlot. (Disclosure: The Centre on the Death Penalty at the National Law University, Delhi, where I currently work, facilitates legal representation for death-row convicts, including Gehlot.)

These commutations were significant on two counts. First, they came from a president who has garnered a reputation for being unsympathetic and sparing with his powers in this respect. The government has carried out three executions since Mukherjee took up the presidency in 2012, making his the tenure with the highest number of executions since that of Shankar Dayal Sharma, who left office in 1997. Mukherjee has also disposed of every mercy petition that has come to him. Unless the home ministry forwards more petitions to him in the little time left before his tenure expires, in late July, he will not leave a single mercy petition pending for his successor to deal with, unlike at least his three nearest predecessors. Second, if the reports that Mukherjee defied the home ministry are accurate, he acted in violation of Article 74 of the constitution, which obliges the president to follow the advice of the council of ministers in the use of her powers. This is something unprecedented—or at least never before publicly documented—in the history of capital punishment in India.

Both these points call for careful analysis. Regarding the first, assessing Mukherjee’s legacy requires a comparison of his record against those of previous presidents, and an understanding of the varied standards India’s presidents have applied to dealing with mercy petitions. Regarding the second, beyond the question of what made Mukherjee act as he did, it is vital to consider, in the context of relevant legal provisions and case law, the constitutional implications of a maverick president rejecting the advice of the council of ministers.

Unfortunately, there are limits to how far such analysis can go, since the procedures for dealing with mercy petitions in capital punishment cases severely limit the amount of relevant information that is made available to the public, or even to convicts themselves. Mukherjee’s actions might have set a troubling precedent—past the requirement to obey the advice of the council of ministers, the president’s powers on mercy petitions are very broad, and could, theoretically, be used to reject mercy petitions in cases where the council recommends clemency. Perhaps now, more than ever, it is time to ask if the causes of accountability and justice would not be better served by ensuring transparency in how the government responds to convicts’ last-ditch pleas for life.

Under the constitution, in all cases where a convict is condemned to death by the courts, both the president and the governor of the state where the crime took place have concurrent jurisdiction over mercy petitions. As per Articles 72 and 161, both have the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence.” Typically, a convict’s mercy petition—usually a document of one or two pages prepared by the prison where the convict is held—is sent first to the home department of the relevant state, which forwards it to the governor with its advice on whether to accept or reject it. If a governor rejects a petition, it is sent, with all documents pertaining to the case, to the ministry of home affairs. The home minister then sends the petition to the president, with advice on how to act. The president can either accept the recommendation, or, if she disagrees with it, send the petition back for reconsideration. If the same advice is sent to her again, she must, under the constitution, accept the recommendation.

The history of capital punishment in India can be divided into several chronological chapters. According to data gathered by the lawyer and researcher Bikram Jeet Batra for his 2009 paper ‘“Court” of Last Resort: A Study of Constitutional Clemency for Capital Crimes,’ between 1947 and 1964, the republic was rejecting well over a hundred mercy petitions each year. The number of executions then trended downwards, and fell off sharply after 1980, when the Supreme Court passed a landmark judgment establishing the principle that the death sentence should be reserved for only the “rarest of rare” cases.

According to Batra’s research, the first president sworn in after this judgment, Giani Zail Singh, saw mercy petitions in 23 cases during his tenure, between 1982 and 1987. He rejected 21 of these. His successor, R Venkataraman, rejected mercy petitions in 34 of the 39 cases placed before him. Shankar Dayal Sharma, who held the presidency from 1992 to 1997, rejected the mercy petitions in all 14 cases that crossed his desk.

With the next two presidents, there was a significant change in both the rate of disposal of mercy petitions, and in the manner in which they were handled. Between 1997 and 2002, KR Narayanan rejected one mercy petition, and left another eight pending for his successor to deal with. That successor was APJ Abdul Kalam, the only president, at least in the last few decades, who has publicly been critical of the death penalty. Specifically, Kalam questioned the bias against the “poorest of the poor” that is evident in the administration of capital punishment in India. He rejected a mercy petition in one case, leading to an execution in August 2004, and commuted a death sentence in another. Besides these, he simply did not decide on mercy petitions in 23 other cases, including those he inherited from Narayanan, which he kept pending until the end of his term. The constitution, while mandating that the president must not deviate from the recommendation of the cabinet, says nothing to keep her from indefinitely delaying a decision on a mercy petition. By keeping petitions pending, Narayanan and Kalam were likely exercising their discretion to oppose the advice of the home ministry without running afoul of the constitution.

The next president, Pratibha Patil, inherited those 23 petitions when she took office, in 2007. Over her tenure, according to data from the Law Commission of India, she accepted 34 petitions, and rejected five. When she faced criticism for being too merciful, she reminded the public that she was, in keeping with the constitution, only following the advice of the home ministry. She left the petitions of 16 convicts pending when she retired from office.

After Mukherjee was sworn in, he set about swiftly disposing of mercy petitions both pending and fresh. As per the website of the president’s secretariat, as of 14 June 2017, Mukherjee had rejected mercy petitions in 30 cases, involving a total of 42 convicts, and commuted death sentences to life imprisonment in four cases, which applied to seven convicts in all. Data from the secretariat shows that the president dealt with almost all the 30 mercy petitions that were rejected in no more than three months after receiving advice on them from the home ministry.

Mukherjee has rejected pleas for mercy in almost 90 percent of the cases placed before him. His predecessor, Patil, commuted the sentences in roughly the same proportion of cases that came to her. This indicates a sharp turnaround in the readiness to recommend rejections on the part of the two administrations whose rule has overlapped with his tenure, and reflects Mukherjee’s readiness to sign off on those recommendations. Mukherjee’s high proportion of rejections is by no means unique, but we have to turn back to the 1980s and 1990s to find presidents with comparable records. But in light of his departure from the trend set by the three preceding presidents, towards either deciding favourably or delaying on mercy petitions, he could find it difficult to shake off the reputation of being especially noose-happy.

The fact that only three of the mercy petitions Mukherjee has rejected have led to executions—in the cases of Ajmal Kasab, Afzal Guru and Yakub Memon, all convicted of terrorism-related offences—itself owes to unprecedented circumstances. In 2013, 15 convicts whose mercy pleas Mukherjee had dismissed approached the Supreme Court to challenge the president’s decision. The following year, the court ruled that “undue, inordinate and unreasonable delay” in dealing with a mercy petition amounted to torture—a violation of the convict’s fundamental rights—and provided grounds for the commutation of a death sentence to life imprisonment. Thirteen petitioners, all of whose mercy petitions had been kept pending by Narayanan, Kalam and Patil before being rejected by Mukherjee, had their sentences commuted on grounds of inordinate delay. The court’s judgment similarly established that mental illness and solitary confinement were supervening circumstances, and commuted the sentences of the remaining two petitioners on grounds of mental illness.

This was the first time the Supreme Court overturned the rejection of mercy petitions by a president on such a scale, and amounted to an indictment of both the delay tactics of past presidents who sat on these petitions, and of the serving government and president’s willingness to reject them. Mukherjee apparently took this judgment to heart. Both the cases where he commuted sentences against the advice of the home ministry were brought before him after the judgment and involved mercy petitions that had been pending with the relevant state governments for over a decade. The reports stating that Mukherjee had defied the ministry said the judgment had guided the president’s decisions, and, given the circumstances, this is plausible. As for the mercy petitions in the 15 cases that have come to Mukherjee after the 2014 judgment and have not involved comparable delay, the president swiftly rejected them all. (Yakub Memon is the only convict involved in these cases to be executed so far. One convict died of natural causes, one had his sentence subsequently commuted by a high court, and one is still on trial for other crimes; in the remaining cases, the rejection of mercy petitions is either being challenged or the convictions and sentences are being reviewed in the courts.)

The full motives behind Mukherjee’s reported departure from the home ministry’s advice, however, are beyond public review at present. In past decisions, the Supreme Court has established that the president’s powers under Article 72 are vast and almost unfettered. These powers are not bound by evidentiary rules or criminal procedure, and the president is free to reassess all available information before differing or concurring on a sentence, or on a conviction itself. The grounds for judicial review of the president’s decision are very narrow, limited to cases where the exercise of the power has been “wholly irrelevant, irrational, discriminatory or malafide,” according to a Supreme Courtruling from 1980. Although, as vast as the powers of the president are in the realm of clemency, Article 74 divests her of all personal discretion in formulating a decision.

In mandating that the president follow the advice of the council, Article 74 also bars any court from inquiring “if any, and if so what, advice was tendered by the ministers to the President.” This means there is no way to scrutinise how the president reached a decision unless the council itself chooses to divulge its recommendation—and is why we have nothing but anonymous sources and reasoned conjecture to shine light on Mukherjee’s decisions.

In the recent cases, the president’s reported constitutional infractions involved the commutation of death sentences in violation of the home ministry’s wishes, but we have no way of even knowing what the recommendation of the home ministry was. With the law powerless to challenge or review Mukherjee’s actions in possibly defying the home ministry, we may never know in the future should a president act similarly to reject a mercy petition after the ministry has recommended commutation.

Not all information pertaining to presidential decisions on mercy petitions is protected from subsequent scrutiny. In a 1994 ruling, the Supreme Court made a distinction between the advice given to the president by the government and the material upon which such advice is based, since the latter is not covered under Article 74. In the case of a court testing the legality of a president’s decision on a mercy petition, such material can include practically all documents relevant to the case other than those stating the recommendation itself. The Supreme Court and high courts call for and review all the papers placed before the president every time the rejection of a mercy petition is challenged, and can, if they deem that essential information was overlooked, send the petition back for fresh consideration. Once these records are placed before a court, convicts can see them too. The difficulty, however, is that this procedure requires complex legal work on a convict’s behalf. If, as is often the case, a death-row convict does not have competent representation—or, for that matter, any representation at all—it is impossible for her to know, and so to consider challenging, the grounds on which her fate has been decided.

It is worth noting that Article 74 bars only the courts, and not affected individuals, from inquiring into the exact recommendation made to the president. The absence of such a bar, however, has not allowed convicts to access the documents or decisions pertaining to their own cases. Right to Information applications seeking these on behalf of death-row convicts, filed by lawyers including my colleagues, have been rejected by the home ministry on two occasions, with Article 74 cited as a defence both times.

Even if we could confirm that the president has deviated from a cabinet recommendation, it is not clear what legal remedy there might be. The Supreme Court, in a case in 1974, discussed some possible courses of action in such an event, but did not set down any binding guidelines. It observed that while the courts may not examine a violation of Article 74, the president could face censure by parliament, “massive protest” and, ultimately, impeachment. Transparency in how the ruling dispensation and the president reach decisions on mercy petitions could keep the republic from ever having to venture into that territory.

The version of this piece in the July 2017 print issue mistakenly stated that there were eight convicts involved in the four cases where President Pranab Mukherjee commuted death sentences to ones of life imprisonment. Those cases involved seven convicts. The Caravan regrets the error.