In India, the President and the Governor act as the last resort to be approached by any criminal given death sentence by any Indian court. The concept of pardoning power is originally derived from the Britain. They had this tradition of providing mercy. If we look to its historical perspective, the right of granting mercy has always been of the crown, exercised as per the advice of Secretary of state. Under the British constitution, it was the ruler who was considered as the head of state. As per the Indian constitution, President is the head of the state. And hence, in India, it is the President who has the power to grant pardon.
In Indian Constitution, the power of the State to grant pardons is available in two forms:
- Power of the President to grant pardon under Article 72 of the Constitution and
- Power of the Governor to grant pardon under Article 161 of the Constitution.
Article 72 empowers the President to grant pardon, respite or reprieve, or to suspend, commute the sentence of any person convicted of any offences in any of the following cases:
(a) Where the punishment or sentence is by a court
(b) Where the sentence or punishment is for an offence relating to a matter over which the Union’s executive has power and
(c) Where there is death sentence
Power given to the President under Article 72 of the Constitution of India was clarified in various judgments and it is clear that “It’s not open to the president to take an independent decision, the power is to be exercised as per advice of ministers and cannot directly release or refuse release of any one of his own choice”.
This power is absolute and as such cannot be fettered by any statutory provision such as Ss. 432, 433 and 433A of the CRPC. Furthermore it cannot be altered or modified or interfered with in any manner by any other rules or statute. A decision of the President of India on a petition under Art 72 is subject to judicial review but on very limited grounds.
In Sher Singh and Ors. V. State of Punjab, It was held that a prisoner has a right to fair procedure at trial, sentence and further stages like incarceration but delay alone as a reason is not sufficient enough for commutation. And In Triveniben v. State of Gujarat, the Court said that the period of delay must be calculated from the date when the apex court pronounces its decision. Inordinate delay might be a significant factor, but that cannot be the sole reason for rendering the execution as unconstitutional.
The judgments in Sher Singh and Triveniben clearly indicate that each and every claim regarding commutation of death sentence needs to be considered individually, in its particular context. These precedents do not support the conclusion that undue delay in execution is entirely an irrelevant factor for a particular category of prisoners on death row. Also, it was laid down that, the disposal of petitions filed under Articles 72 of the Constitution requires various factors that are to be taken into consideration like:
- nature of crime
- manner in which the crime is committed and
- its impact on the society
And that the time involved in this process cannot be characterized as delay.
In Kehar Singh v. Union of India it was held that power to pardon is part of the constitutional scheme, and should be so treated. It has been reposed by the public through the constitution in the head of the state, enjoys a high status and is a constitutional responsibility of great significance which can be exercised in accordance with the discretion that is contemplated by the context.
In 2013, Supreme Court in “Devender Singh Bhullar’s case said that those sentenced to death in cases of terrorist offences should not be allowed to take the argument of inordinate delay for commutation of death sentence. Then the question was, whether such differentiation between convicts of terrorist offences and non-terrorist offences was lawful.
This confusion was answered in case of “Shatrughan Chauhan v. Union of India”, wherein the Court held that classification of such terrorist and non-terrorist offences in context of inordinate delay in the disposal of such petitions is not correct. Court also said that no individual can be deprived of their right to life and liberty and other fundamental rights. It was also held that under Article 21, executive needs to take care of the ‘supervening events’ in deciding mercy petitions. Supervening events are the ones that occur between the confirmation of the death sentence and its actual execution, as under Article 21, every prisoner has a right to life and personal liberty till hanged.
The decision basically clears the confusion and lays down that that the Court is competent to examine, whether the rights of the convicts on death row have been violated by the executive, because of causing inordinate delay or not. The court also clarified that the severity of the crime in no way remunerated for the violation of fundamental rights, incurred by any unexplained delay in disposal of mercy proceedings. The judgment provides for protecting the rights of death-row convicts, who suffered injustice and discrimination by the executive and the judiciary.
The Supreme Court also specified many guidelines:
- Solitary confinement in cells, before the rejection of mercy petition is unconstitutional.
- The convict and his family must be informed of the decision of the President or the Governor to reject the mercy petition.
- A minimum gap of 14 days must be there between the rejection of the petition and the execution, so as to provide the convict the time to be mentally prepared and meet his family members.
- Regular medical examination of prisoners is compulsory, as per Section 53 of the Code of Criminal Procedure.
- The execution of the prisoner who is not mentally or physically fit is prohibited.
 1983 AIR 465
 1989 AIR 1335
 1983 AIR 465
 1989 AIR 1335
 1989 AIR 653