Death Penalty Abolition Debate

What are the standards for awarding death sentence, the President’s ‘Mercy’ power?


From UPSC perspective, the following things are important :

Prelims level: Death Penalty, Pardoning Power

Why in the News?

  • The President of India has rejected a Mercy Petition to pardon a Pakistani terrorist.
    • The accused was one among the Lashkar-e-Tayyeba terrorists who attacked the Red Fort in 2000, killing two soldiers and a civilian guard.

What is the process of Mercy Petition?

  • Step 1: The convict facing a death sentence can file a mercy petition within 7 days of the Supreme Court dismissing their appeal.
  • Step 2: The convict or their relative submits a written petition to the President or governor, citing grounds such as sole breadwinner, physical/mental health, perceived harshness of the law, or judicial errors.
  • Step 3: The petition is forwarded to the Ministry of Home Affairs for assessment and recommendations, including consultation with the relevant State government.
  • Step 4: Based on Home Ministry recommendations and the Council of Ministers’ advice, the President can accept or reject the mercy plea without a specified time limit.
  • Step 5: While governors cannot pardon death sentences, they can commute, remit, or reprieve sentences under their state’s executive powers for offences against state laws.

Judiciary on Mercy Petitions:

    • Bachan Singh v. State of Punjab (1980): The Supreme Court, upheld the death penalty but set the stringent criteria. It emphasized that the death penalty should be awarded only in the “rarest of rare” cases when all mitigating circumstances are considered.
    • In Maru Ram v. Union of India (1981), the Supreme Court ruled that the power to grant pardons under Article 72 of the Constitution must be exercised based on the advice of the Council of Ministers.
    • In Kehar Singh vs Union of India (1989) case, the court asserted that presidential pardon is an act of grace, not a right that can be claimed. The exercise of this power is purely administrative and not subject to judicial review.
    • In the Dhananjoy Chatterjee vs State of West Bengal (1994) case, the Supreme Court clarified that the pardoning powers under Articles 72 and 161 of the Constitution can only be exercised by the Central and State Governments, respectively, and not autonomously by the President or Governor.
    • In Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006), the Supreme Court ruled that the clemency powers of the President and Governor under Article 72 and Article 161 are subject to judicial review.
    • In Shatrugan Chauhan v. State of U.P. (2014), the appex court has also commuted the death sentence in cases of inordinate delay in deciding mercy petitions. The court commuted the sentence of one Gurmeet Singh after he spent 27 years in custody (and 21 years on death row). 
    • In Mohd. Afzal Guru vs State of Delhi (2014) case, the court-mandated a minimum 14-day gap between the rejection of a mercy petition and the execution of a death penalty, ensuring adequate time for legal recourse.
    • Report of the 262nd Law Commission (2015): Recommended abolishing the death penalty for all crimes except terrorism-related offenses and waging war.
    • In April 2023, the Supreme Court upheld the Mumbai High Court’s decision to commute the death sentence of a woman and her sister due to significant delays in deciding their mercy petitions.

About Presidents’ Pardoning Powers under Article 72

  • According to Article 72, the President of India 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 offense: In cases where the punishment or sentence is by a Court Martial;
    • According to Article 161, the Governor of a State 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 against any law relating to matters under the executive power of the State.
  • In the recent Supreme Court Ruling of 2021, the apex court held that the Governor of a state can pardon prisoners, including those on death row, even before they have served a minimum of 14 years of their prison sentence.

Did you know?

  1. Pardon means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  2. Commutation means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  3. Reprieve means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for a Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  4. Respite means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  5. Remission means changing the time period of the punishment without changing its nature, for example reducing twenty years of rigorous imprisonment to ten years.

Cases as specified by Art. 72

In all cases where the punishment or sentence:

  1. is by a court-martial.
  2. is for an offence against any law relating to a matter to which the executive power of the Union extends.
  3. is a sentence of death.

Nature of the Pardoning Power

  • The pardoning power of the president is not absolute.
  • At a procedural level, the apex court in Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006) has held that the President’s power must be exercised based on the aid and advice of the Council of Ministers and can be challenged on multiple grounds including that relevant material was not considered, the power was exercised based on political considerations, or there was no application of mind.
  • This has not been discussed by the Constitution but is the practical truth. Further, the constitution does not provide for any mechanism to question the legality of decisions of presidents or governors exercising mercy jurisdiction.



[2014] Instances of President’s delay in commuting death sentences have come under public debate as denial of justice. Should there be a time specified for the President to accept/reject such petitions? Analyse.

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