 Please subscribe to this YouTube channel. Mentor talk can do press bell button for notifications. The process of mercy petitions in India has always remained a subject of interest and debate. Recently we found Nirbhaka's convicts moving the president of India for pardoning their death sentence. A convict sentenced by the court of law can make a mercy petition to the president of India as the very last and final constitutional recourse or remedy. Let us try to understand the concept of mercy petition law in India. Article 72 of the Indian constitution empowers the president of India to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense. A, in all cases where the punishment or sentence is by a court martial. B, in all cases where the punishment or sentence is for an offense against any law relating to a matter to which the executive power of the union extends. C, in all cases where the sentence is a sentence of death. Correspondingly the power to grant pardon is conferred upon the governors of states as well. That is under article 161 of the constitution of India. However, the governor of a state 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 offense against any law relating to a matter to which the executive power of the state extends. So, the court marshals and death sentence in all cases are out of the purview of the governor. Only president has those powers of court marshals and death sentence related sentence. I have not come across any statutorily prescribed written procedure dealing with the mercy petitions. A convict who has been awarded death sentence is permitted to make a petition within a period of seven days from the date when he is officially informed about the dismissal of his final appeal or special leave to appeal or including a curative appeal or plea, let's say. The petition can be signed by the convict himself or by any of his close relatives. The petitions as received by the president's office are then forwarded to the ministry of home affairs for their observations and recommendations, which are given by the home ministry after further consultations with the concerned state government. I may also add here another interesting piece of information for all of you. In the eventuality, the mercy petition is filed within seven days. Then the jail superintendent is obligated to hold and state the execution of the death sentence. But post the expiry of seven days, what happens if one does not move a petition within seven days? Well, that does not bar the convict to move petition even beyond seven days. But in those cases, the decision as to deferring the death sentence is taken by the concerned state government, depending on the exceptional circumstances. Now, interestingly, despite the president and governors being the executive heads, they cannot exercise. They cannot exercise any discretionary powers under Article 72 and 161, respectively. They have to act on the advice of the government. Hence, the president may accept or reject the mercy petition based on the advice of the executive, that is, Council of Ministers. There are several judgments of the Supreme Court and High Courts, which clarify that the president and the governor cannot exercise any powers or discretion under Article 72 and 161, respectively. We have also witnessed that the mercy petitions have been kept pending for an unspecified period of time because the Constitution does not provide for any stipulated time limit to accept or reject the mercy petition. The Constitution does not provide any time limit for disposal of the mercy petition. However, in 2014, the Supreme Court of India, in a case of Shatrughan Chauhan and another versus Union of India, the Supreme Court came down very heavily on the inordinate delays in dealing with the mercy petitions. The court observed that keeping a convict in suspense while consideration of his mercy petition by the president for many years is certainly an agony for him. It creates adverse physical conditions and psychological stresses on the convict under sentence of death. Indisputably, the court said that the court cannot excuse the agonizing delay caused to the convict only on the basis of the gravity of the crime. The court said that the court was well within its rights and powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment. Globally, my research shows that the concept of mercy has been acknowledged in terms of a human right. In India as well, the Supreme Court ruled that it is befitting to grant another degree of protection in the matter of life and personal liberty by entrusting power further to some high authority to consider the option of commutation that is resentencing. When your life and personal liberty is involved, mercy petition is a very legitimate process. The court said that the power so interested is a power belonging to the people and lies in the highest dignitary of the state. That's what the court observed in Kersing. Now, particularly important parameters were laid down by the Supreme Court in this very case regarding dealing with or disposal of the mercy petition. Firstly, the courts said in those parameters that the president must act in accordance with the advice tendered to him by the executive. Secondly, it said that it is open to the president to scrutinize the evidence on the record of the criminal case and come to a different conclusion, different from the court as recorded by the court. It can differ from that decision. Thirdly, it said that while doing so, the president is not exercising judicial power, but it is exercising executive or constitutional power. Fourthly, the court observed that the practical effect of the presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. Fifthly, which should be finally, and there are a couple of other parameters I would skip that. Fifthly, there is no right in the convict to insist on an oral hearing before the president. So, president is not supposed to hold any hearing while deciding mercy petitions. Now, let me also cite another important judgment of the Supreme Court which holds that the decision of the president and the governors as the case may be can actually be challenged in the court of law. In other words, their decision is subject to judicial review. So, which means that their decision is also not final, the decision on mercy petition by the president or the governor. In a poor Sudhakar and another versus government of Andhra Pradesh and others, the Supreme Court held that the judicial review of the order of the president or the governor under Article 72 or Article 161 as the case may be is available and their orders can be impugned, which means their orders can be challenged on the following grounds. A, that the order has been passed without application of mind B, on the ground that the order is malafied. C, that the order has been passed on extraneous or wholly irrelevant considerations. D, that relevant materials have been kept out of consideration. E, that the order passed by the president or the governor as the case may be suffers from arbitrariness. So, their orders are subject to judicial review. For instance, a remission of life sentence was given by the governor of Uttar Pradesh to an MLA, to a member of state legislative assembly, who was convicted for the offense of murder. It was remitted by the governor. The Supreme Court in this case, quashed the governor's order as not being in accordance with the intent of Article 161. So, their orders can be struck down, president or governor's orders under judicial review. So, that is all for the time being. See you again sometime soon with another topic of your interest.