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.

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.

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.

(Adapted from The Indian Express)