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Updated: Mar 14, 2021


“The most terrible thing in the world is justice without mercy.” –Francois Mauriac

One of the most debated criminal and constitutional justice subject matters- mercy petitions is fast losing its significance because of the substantial legal ambiguity and glaring legislative vacuum ailing it. Enshrined in the revered grundnorm itself, the question of mercy petition must be dealt with prompt governmental action colligated with active judicial efforts, ushering a new era in the co-related fields of criminal and constitutional rights of the prisoners.


India as a nation is comprised of varied economic, political, social and geographical constituents. The Indian society as a whole is so distinctly diversified yet, so intrinsically inter-connected. This salient feature of the society was highlighted by MacIver when he said, “Society is a complex web of relationships.”[1] It then becomes undoubtedly pertinent that the interaction between the societal components is bound to lead to some sort of friction. This friction can either be a result of economic divide, social divide or digital divide, et al. Determinatively, the conflict of interests will lead to a physical reaction by the deprived or destitute units of the society. This physical reaction is what the legal dictionaries label as- offence.

In common legal parlance, an offence is defined as the culmination of Actus Reus and Mens Rea. Actus Reus refers to such an act of the offender which has been made legally or statutorily punishable and prohibited. Mens Rea refers on the other hand pertains to the active mental element for committing the said offence. Offences are categorised into various classes such as compoundable-non compoundable, cognizable-non cognizable and bailable-non bailable. However, for some of these offences imprisonments are prescribed and for some, death penalties are given as punishments. In order to show mercy to certain prisoners for their good behaviour and as a result of their long imprisonments- Mercy petitions were originated.

Constitutional Provisions:

Mahatama Gandhi’s theory of justice was largely based on the principle that, an eye for an eye makes the whole world blind. It is Gandhi’s legacy that our Constitution follows in certain aspects. Mercy Petition or the pardoning powers of the Governors and the President enshrined in our constitution is a partial reflection of what Gandhi preached. Additionally, it is given to showcase the governmental concern for public good and welfare. Articles 72 and 161[2] are the descriptive articles of the pardoning powers. Article 72 declares that the President has the powers to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 on the other hand gives the same powers to the Governors of the respective States except, for the pardoning authority on a death sentence. Some integral differences between the powers of the president and Governor are:

i. Jurisdictional Extent of the Powers: It must be noted that the pardoning power of the Governor extends only to such extent to which the executive powers of the respective state government extends; whereas the Presidential powers have a pan-India authority.

ii. Powers in a Court Martial: The President exercises all his powers as the highest executive of the State even in a trial conducted vide the rules of Court Martial, whereas the Governor has no such powers.

iii. Death Penalty Cases: A governor cannot pardon in a case of death sentence while a President can do so.

Pardon means the total acquittal of the person from the offence, whereas commutation means the reduction of punishment to a less harsh one. Remission refers to an alteration in the nature of the punishment; whereas in Reprieve, a delay is allowed in the execution of a death sentence. Respite refers to the reduction in the degree of punishment sighting some specific grounds.

Procedure for Mercy Petition:

According to the legal guidelines and Ministry of Home Affairs notifications[3], persons filing for mercy petitions are required to state the reasons for filing of the same. The grounds are not necessarily meant to be legal but, can be socio-economic as well. Pregnancy of a lady convict or the case of a sole bread winner is some of the examples of the same. A seven day time period from the communication of the appeal or SLP dismissal by the Superintendent of Jail, is given to the convict for filing the mercy petition. However, the President or the Governor is not bound to always extend his mercy to the convict. Heinous crimes like gang rape convicts are seldom shown mercy, exemplar being the Nirbhaya Gang Rape Case. The President is presented with the mercy petition filed by the convict and further seeks the advice of the MHA on the same.

In Dhananjoy Chatterjee alias Dhana v State of West Bengal (1994), the Supreme Court observed,

The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but neither consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.”

The aforementioned conclusions were reiterations of the Maru Ram v Union of India (AIR 1980 SC 2147) and Kehar Singh v Union of India (AIR 1989 SC 653). The judgment clearly states that the advice of the respective Government must be taken because Article 74(2) of the Indian Constitution mandates that the President is bound by the advice of the Cabinet of Ministers or the Union Council of Ministers headed by the Prime Minister. Sans the following of the aforementioned dictum, a President can be impeached on the grounds of violation of the Constitution. Article 163 is similar to the above mentioned constitutional provision except for the fact that the same is applicable on the Governor.

Judicial Review:

In Swaran Singh v State of UP (1998 4 SCC 75), it was held that “though this Court cannot go into the merits of the grounds which persuaded the Governor in taking a decision in exercise of his powers, the order of the Governor is subject to judicial review within the strict parameters laid down in Maru Ram's case and that the Governor shall not be deprived of an opportunity to exercise his powers in a fair and just manner.”

The Court cannot usually interfere in the President’s decision except for the want of merit, reasonability or rationality. Article 137 of the Indian Constitution provides that in matter of any laws made under Article 145, the Supreme Court can review its decisions within 30 days from the judgment or order.

In Shatrughan Chauhan & Anr. v Union of India (2013), teh Supreme Court has clearly held that an inordinate and unexplained delay in deciding the mercy petitions makes for a clear cut case of commutation for the convict. The crime is irrelevant and not a deciding factor for delaying the disposal and decision of mercy petitions. Also, the torture of knowing whether a person would be hanged or not is violative of Article 21 of the Constitution of India. Article 21 lays down significant importance on the “procedure established by law” and after the decision in Maneka Gandhi v Union of India (1978 AIR 597), “due process of law” is also an inevitable component of Article 21. An inexplicable delay is violative of both these constituents.

Way Forward:

According to the 262nd Law Commission Report[4], 2015, a total of 306 mercy petitions were accepted. However, the Report suggested abolition of death penalty except for in cases of waging war and terrorism related offences. Till 2015, a total of 140 had totally abolished death penalty going for milder forms of justice including reformative, deterrent and preventive forms of punishment. Even the Chairperson of our Drafting Committee of the Constitution, Dr. B.R. Ambedkar was against the use of death penalty. It is no trite that crime is a society-fuelled behaviour or reaction. A reaction cannot be dealt with a responsive action but, only a response. In these circumstances, it becomes pertinent to understand the fact that softer methods of punishment like social service etc. are capable of bringing a transformative change in the society. Inordinate delays in deciding mercy petitions are the evils against the fundamental rights of our Constitution and must be weeded out as soon as possible. In the words of John F. Kennedy,

The rights of every man is diminished when the rights of one man is threatened.”


References [1] Robert M. MacIver, American Sociological Association, [2] Ind. Const. arts. 72 and 161. [3] Mercy Petition, President’s Secretariat, Rashtrapati Bhawan [4] The Death Penalty, 262nd Report, Law Commission of India, Government of India, 2015.




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