Mercy plea rejected by President, what next for death-row convict?

There have been precedents that show judicial options remain for a death-row convict even after rejection by the President.

The five were produced before the magistrate court Tuesday, which remanded them in police custody till Thursday.

President Ram Nath Kovind has rejected the mercy plea of Jagat Rai who, along with accomplices, was convicted of killing a woman and five children by setting their house on fire while they were asleep in 2006, at Rampur Shyamchand village in Bihar. His death sentence was upheld by the Supreme Court in 2013. There have been precedents that show judicial options remain for a death-row convict even after rejection by the President.

When it reaches President
The sentence of death passed by a trial court has to be confirmed by a High Court. The convict can then move the Supreme Court. In September 2014, a Constitution Bench of the SC held that appeals against HC rulings confirming the death sentence will be heard by a Bench of three judges. Once the SC dismisses such an appeal, the convict can seek a review (to be heard in open court) and subsequently, file a curative petition. If all these are dismissed, the convict has the option of a mercy petition. There is no time limit within which the mercy petition has to be decided.

READ | President Ram Nath Kovind rejects first mercy plea: Murder of six of family in Bihar

Story continues below this ad

Power of pardon
Under Article 72 of the Constitution, “the President shall have 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 where the sentence is a sentence of death”. Under Article 161, the Governor too has pardoning powers but these do not extend to death sentences.

The President cannot exercise his power of pardon independent of the government. Rashtrapati Bhawan forwards the mercy plea to the Ministry of Home Affairs, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.

In several cases, the SC has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.

Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Story continues below this ad

After President decides
In October 2006, in Epuru Sudhakar & Another vs Andhra Pradesh and Others, the SC held that the powers of the President or Governor under Articles 72 and 161 are subject to judicial review. Their decision can be challenged on the ground that (a) it was passed without application of mind; (b) it is mala fide; (c) it was passed on extraneous or wholly irrelevant considerations; (d) relevant materials were kept out of consideration; (e) it suffers from arbitrariness.

Can a High Court review the President’s rejection of a mercy petition? The question is pending before the SC. Sonu Sardar, a murder convict from Chhattisgarh, was sentenced to death in 2008 for killing five members of a scrap dealer’s family, including two minors, in 2004. After his mercy pleas to the Governor and the President were rejected, Sardar moved the Delhi HC in 2015 challenging the rejection citing “delay, improper exercise of power and illegal solitary confinement”.

On June 28, 2017, the High Court commuted the sentence to life imprisonment.

The Centre challenged this, and the Supreme Court issued a notice in November 2017. The government contended that only the Supreme Court should entertain petitions against the President’s decision to reject a mercy petition.

Ananthakrishnan G

Ananthakrishnan G. is a Senior Assistant Editor with The Indian Express. He has been in the field for over 23 years, kicking off his journalism career as a freelancer in the late nineties with bylines in The Hindu. A graduate in law, he practised in the District judiciary in Kerala for about two years before switching to journalism. His first permanent assignment was with The Press Trust of India in Delhi where he was assigned to cover the lower courts and various commissions of inquiry. He reported from the Delhi High Court and the Supreme Court of India during his first stint with The Indian Express in 2005-2006. Currently, in his second stint with The Indian Express, he reports from the Supreme Court and writes on topics related to law and the administration of justice. Legal reporting is his forte though he has extensive experience in political and community reporting too, having spent a decade as Kerala state correspondent, The Times of India and The Telegraph. He is a stickler for facts and has several impactful stories to his credit. ... Read More

narendra modi, nitish kumar, bihar election,

5 key takeaways as PM Modi begins Bihar poll campaign from Samastipur

Political Pulse1 hr ago

PM Modi began his Bihar election campaign in Mithila region, emphasizing on social justice, development, and Hindutva. He also cautioned against the return of "jungle raj" and subtly addressed the opposition's charge of not declaring Nitish Kumar as the CM candidate. He paid tribute to Karpoori Thakur, co-opted his socialist legacy, and spoke about the NDA's achievements in the state.

View all shorts

More Explained

Explained PM Modi invokes Karpoori Thakur in Bihar: Why the former CM matters today, explained