ACHR PRESS RELEASE

ACHR INDEX: PR/IND/12/2014
Date: 10 October 2014

President Pranab Mukherjee the most arbitrary on mercy pleas

- ACHR calls for fresh Guidelines on consideration of mercy pleas until abolition of death penalty in India -

New Delhi: Asian Centre for Human Rights (ACHR) in its report, “Arbitrary On All Counts: Consideration of of mercy pleas by the President of India”  released today on the occasion of the 12th World Day Against the Death Penalty stated that the President of India has little respect for rules on the mercy pleas adopted by the Government of India, laws based on stare decisis, natural justice and precedents set by the former Presidents while considering the mercy pleas of death row convicts. The report analyses 41 cases of mercy pleas involving 65 condemned prisoners considered by the President of India since 1980.

Describing President Pranab Mukherjee who has already rejected maximum number of mercy petitions  since the 1980 Bachan Singh judgment as the most arbitrary, Asian Centre for Human Rights stated that President Mukherjee had rejected mercy pleas of mentally unfit death row convicts Sundar Singh on 31.03.2013 and Maganlal Barela on 16.07.2013 in clear violation of the Guidelines on Mercy Pleas of the Ministry of Home Affairs which prohibit execution of mentally unfit death row convicts. The Supreme Court in the case ofShatrughan Chauhan & Anr Vs. Union of India & Others declared the rejection of these mercy pleas as illegal and commuted the capital punishment to life imprisonment.

Though Rule V of the Mercy Petition Rules states that all the records of the case be sent along with the mercy plea, President Mukherjee had rejected the mercy pleas of Suresh and Ramji of Uttar Pradesh on 08.02.2013 without taking into account judgement of the trial court and of Praveen Kumar of Karnataka on 26.03.2013 which was in Kanada. The trial court's order is the most crucial document while considering the mitigating circumstances but the President had rejected mercy pleas without considering this most crucial document.

“The President of India should ideally be the first person to ensure respect for the stare decisis i.e. law established by previous decisions of the superior courts. However, President of India has consistently demonstrated the lack of respect for stare decisis and has rejected mercy pleas such as of Saibanna Ningappa Natikar on 04.01.2013 despite the Supreme Court declaring decision on Saibanna’s case as per incuriam vide udgement dated 13.09.2009. That the President rejected Saibanna’s mercy plea despite the per incuriam nature of the judgement that sentenced him to death being brought to the notice of the President by 14 former judges of the Supreme Court and High Court is extremely regrettable”- Stated Mr Suhas Chakma, Director of Asian Centre for Human Rights.  

The lack of respect for stare decisis becomes absolutely clear with respect to Holiram Borlodoi on whose behalf Asian Centre for Human Rights filed a mercy petition with the President on 6th February 2014 to commute the death sentence on him, among others, on the grounds of unexplained and inordinate delay as enunciated by the Supreme Court’s judgement dated 21.01.2014 in Shatrughan Chauhan & Anr Vs. Union of India & Others.Vide judgement in Shatrughan Chauhan case, the apex Court commuted the death sentences on 15 death-row convicts to life imprisonment on the ground of delay ranging from six and half years to twelve and half years. Though Bordoloi filed the mercy plea in 2005 and for the last eight years, his mercy plea was not considered and he deserved commutation as per theShatrughan Chauhan judgment. However, President Mukherjee hurriedly rejected Bordoloi's mercy plea on 05.07.2014 after the NHRC issued a notice to the Ministry of Home Affairs on the status of Bordoloi's mercy plea following a complaint filed by ACHR on 06.02.2014.

“A condemned prisoner is equally entitled as other condemned prisoners to the right to equality and non-discrimination even during the process of mercy petition, including disposal and beyond. Yet, President of India had picked up Ajmal Kasab and Mohd. Afzal Guru out of the queue and they were hanged ahead of the other condemned prisoners.” – further Stated Mr Chakma.

The 41 cases of mercy pleas analysed for the report are broadly categorised under seven categories i.e. cases of murder of spouse and children, cases of murder by servants for gains, cases of murder due to enmity, cases of murder by relatives, cases of rape and murder of minor girls, cases of kidnapping followed by murder for gains and murder cases under anti-terror laws. In large number of these cases, the President of India gave contradictory decisions despite the cases having similar facts and circumstances. 

"The decisions of the President of India on mercy pleas must not be arbitrary but judicious. The decisions must be seen to be in compliance with the Guidelines on the mercy pleas adopted by the Government of India, laws based on stare decisis, natural justice and past precedents set by the former Presidents."- also stated Mr Chakma.

In order to address arbitrariness while considering mercy pleas, Asian Centre for Human Rights recommended 10 point principles for consideration of mercy pleas by the Governors of the States and the President of India: 

Principle 1. The consequences of inordinate and unexplained delay in the disposal of mercy pleas of condemned prisoners should be considered as grounds for granting mercy, i.e. the commutation of the death sentence into life imprisonment.

Principle 2. Possibility of reform of the condemned prisoner should be considered as a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment.

Principle 3. A dissenting judgement at any stage of the proceeding before the Court should be a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment.

Principle 4. Denial of the right to appeal because of the enhancement of punishment by the Supreme Court in the form of death penalty should be a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment.

Principle 5. Conviction based on self-incrimination should be a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment. 

Principle 6. Inability to defend oneself by hiring own lawyer as reflected from appointment of amicus curiae or lawyers from legal aid services by the Courts in all stages of the proceedings should be a mitigating ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment. 

Principle 7. Conviction based on per incuriam cases should be a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment. 

Principle 8. Imposition of mandatory death penalty should be a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment.

Principle 9. Death penalty imposed solely based on circumstantial evidence should be a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment.

Principle 10. Making orphan should be a ground for granting mercy, i.e. the commutation of the death sentence into life imprisonment.[Ends]