INTRODUCTION:

Human life is perhaps the most precious gift, and many influential people declare this. That's why some people believe that if you can't give life, you don't have the right to take it. Many people believe that the death penalty should not be banned, regardless of the nature and severity of the crime. Some people also believe that the death penalty is a deterrent for serious crimes and that there is nothing wrong with the death penalty as a form of punishment. Debates on the subject intensified in the second half of the 20th century, and those within the First School succeeded in encouraging governments in approximately 140 countries to abolish the death penalty.

“Proponents of the ‘eye for an eye’ philosophy want ‘death for death’ ‘Humanists', on the other hand, oppose another bad idea.” Too much noise about nothing what" a similar connection was made in the case in Bachan Singh v. State of Punjab¹, this Court has established the “rarest-of-rare-cases” standard for a reward for murder. The decision-making process in the Bachan Singh case to decide whether to impose the death penalty is one of the issues that have attracted our attention and we will take up this issue in due course.”

Mercy Petition:

A mercy petition is a formal request made by a person who has been sentenced to death or imprisonment seeking mercy from the President or the Governor, as the case may be. The idea of mercy petition is adopted in many countries like the United States, United Kingdom, Canada and India. Everyone has the basic right to live. It is also described as a fundamental right mentioned under Article 21 of the Indian Constitution.²

Provision of IPC and Constitution of India:

In India, the Indian Penal Code (IPC) 1860 prescribed the death penalty as one of the punishments and this provision was retained after independence. However, in accordance with the maximum age at which a human being must be tolerant towards all living beings, the framers of the Constitution have provided for the President or the Governor, as the case may be, by enacting Articles 72 and 161, to reduce, commute, stay or commute the execution of any person convicted of a crime, or suspend or commute the sentence. or commutation of sentence, as shown below, the President has used his authority under Article 72 to commute a large number of death sentences to life imprisonment. Imprisonment unless the suspect is convicted of a felony and/or hate crime.

Alternative to death penalty:

According to Section 53 of the Indian Penal Code, the court can give five types of punishments to a person guilty of a crime. These are death, life imprisonment, simple and rigorous imprisonment, forfeiture of property and fine.

The Committee on Reforms in Criminal Justice System, chaired by Dr. Justice Malimath³, in its report submitted in the year 2003 recommended suitable amendments to provide for punishment greater than life imprisonment and less than death penalty, which exists in the United States of America, namely Is "imprisonment for life without any variation or remission”. The relevant paragraphs, namely paragraphs 14.7.1 and 14.7.2 of the Malimath Committee Report were as follows:

“Section 53 of the IPC enumerates various kinds of punishments that can be awarded to the offenders, the highest being the death penalty and the second being the sentence of imprisonment for life. At present there is no sentence that can be awarded higher than imprisonment for life and lower than death penalty. In USA a higher punishment called “Imprisonment for life without commutation or remission” is one of the punishments. As death penalty is harsh and irreversible the Supreme Court has held that death penalty should be awarded only in the rarest of rare cases, the Committee considers that it is desirable to prescribe a punishment higher than that of imprisonment for life and lower than death penalty. Section 53 is suitably amended to include “Imprisonment for life without commutation or remission” as one of the punishments.

Wherever imprisonment for life is one of the penalties prescribed under the IPC, the following alternative punishment be added namely “Imprisonment for life without commutation or remission”. Wherever punishment of imprisonment for life without commutation or remission is awarded, the State Governments cannot commute or remit the sentence. Therefore, suitable amendment may be made to make it clear that the State Governments cannot exercise power of remission or commutation when sentence of “Imprisonment for life without remission or commutation” is awarded. This however cannot affect the Power of Pardon etc of the President and the Governor under Articles 72 and 161 respectively.”

Statistics of mercy petitions:

More than 300 clemency petitions were submitted between 1950 and 2009, of which 214 were granted by the president and the death penalty was life imprisonment. 69 applications were rejected by the President. The result of one petition is obscure. However, about 18 petitions filed between 1999 and 2011 remained pending for a period ranging from 1 year to 13 years. This gives the impression that the Government and the President's Secretariat have not dealt with these petitions with the required seriousness. The Court hopes and trusts that in future such petitions will be disposed of without any undue delay.⁴

Case of Mr Davender Pal Singh Bullar:

Professor Bhullar was convicted of involvement in the bombing of the All-Indian Youth Congress in New Delhi in 1993, killing 9 and leaving 17 wounded. In 2001 he was sentenced to death, yet the evidence on which his conviction stands is agreed by many to be tenuous, with even the Public Prosecutor who appeared against Bhullar during his Supreme Court appeal of 2002 describing the sentence as a Judicial Error due to the conviction being based solely on an uncorroborated confession from Bhullar, later retracted. His appeal for clemency was rejected by the Indian government on April 12th 2013 of this year.⁵

Appeal filed by Asian Centre for Human Rights (ACHR):

Asian Centre for Human Rights (ACHR) fervently appeal 18 April 2013 to Article 72 of the Constitution of India President to reconsider the death sentence of condemned prisoner Mr Davender Pal Singh Bullar and commute the same to life imprisonment and further abolish death penalty on the following ten grounds:⁶

1. First, President can review a mercy more than once as per precedence.

2. Second, the order of the Supreme Court to seek the views of the presiding judge not complied with.

3. Third, dissenting judgment at any stage must be one of the criteria for granting pardon.

4. Fourth, parity must be ensured while commuting to life imprisonment.

5. Fifth, a mentally unfit person cannot be hanged.

6. Sixth, Indian society is not ready to live with executions of convicts every second or third day.

7. Seventh, no scientific or empirical basis to suggest that death penalty acts as a deterrent.

8. Eighth, terror offender do not deserve any mercy is non-est in law.

9. Ninth, justice is not synonymous of death sentence.

10. Tenth, abolition of death penalty is in India's national interest.

Asian Centre for Human Rights cites 16 cases below to show the death penalty was commuted to life imprisonment by the President despite no dissenting judgment of any of the judges of the Supreme Court. This is in contrast to the dismissal of mercy petition of Mr Bhullar despite dissenting judgment of Justice Shah.

Mr Bhullar continues to be under treatment for mental disorder and suicidal tendencies at the Institute of Human Behaviour Allied Science, New Delhi and media reports quoted the doctors attending/treating Mr Bhullar stating that requires further treatment. The Government of India must not execute a mentally and physically unfit person.

The rejection of mercy petitions on the ground that terror offender deserves no mercy is without any legal basis. The death sentence is awarded based on “the rarest of rare case” doctrine and no distinction is made with respect to terror offences and other offences. Even with respect to terror offences, India gave sovereign assurance to Portugal not to impose death penalty on Abu Salem, an accused of the 1993 Mumbai serial blasts in which about 250 persons were killed and about 700 were injured.

Further, the Government of India must recognize the right to equality includes equality among persons in similar situation. All death row convicts are equal among themselves and any exclusion of any death row convict on the ground of terror offences being unpardonable, which is non-est in law, shall constitute violation of Article 14 of the Constitution of India.

Remission of sentences:

The power of remission of sentences has been give under Article 72 and 161 of the Constitution and sections 432, 433 and 433A of the Criminal Procedure Code, 1973. The Supreme Court after hearing the related to sangeet and another vs. State of Haryana⁷ in its order dated 20th November 2012 had addressed the issue of remission of sentences and also examined the procedural check on arbitrary remissions given under section 433 A of the Cr. P.C. Section 433 A of the Cr. P. C reads as follows:

433A. Restriction on powers of remission or commutation in certain cases Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of the sentence of a person who is found guilty of any of the penalties provided for in the law for the death penalty or who has been sentenced to death is commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.⁸

The Supreme Court decided that:

“There is a misconception that a prisoner serving a life sentence has an inalienable right to release after attaining fourteen or twenty years of age years in prison. A life convict is expected to remain in custody till the end of his life subject to any pardon granted by the appropriate Government under section 432 of the Criminal Procedure Code, which in turn is subject to procedural control in this section and substantive inspection in section 433-A criminal Procedure Code.

The granting of a pardon is lawful. However, to prevent its arbitrary performance, the legislator introduced some procedural and substantive controls statute. The power under this section is available only to grant "additional" remission, i.e. for a period exceeding the remission granted or granted convicted under the Prison Manual or other statutory rules. If the deadline sentence is indeterminate (as in life imprisonment), authority under section 432 of the criminal procedure code can certainly be applied, but not on the basis of that life imprisonment is an arbitrary or fictitious figure of twenty years imprisonment.

Before the actual exercise of the power of remission under Section 432 of the Criminal Procedure Code must be acquired by the appropriated government the opinion (with reasons) of the presiding judge of the sentencing or confirming panel Court Pardons can therefore only be granted on a case-by-case basis and not wholesale.”

Present Status Bhullar’s case:

As of my last update in April 2023, Devender Pal Singh Bhullar, who was convicted in the 1993 Delhi bomb blast case, had his death sentence commuted to life imprisonment by the Supreme Court of India in 2014. This decision was based on the considerable delay in the disposal of his mercy petition and his mental health condition. Following the commutation of his sentence, Bhullar was transferred from Tihar Jail in Delhi to a prison in Punjab, which was closer to his family. This transfer was part of the legal and humanitarian considerations given his mental health status.⁹

CONCLUSION AND SUGGESTION:

Mahatma Gandhi told that “An eye for an eye makes the whole world blind”. The justice delay is unjust and inhuman. Life is little but problems are bigger. Our law is not comfort innocent person. If innocent person is victim any conspiracy or charged by false criminate, they should be life is dark. Just you see many cases pending in India. There parties are loss of life in waiting for decision. For saving life this time is changing our criminal law necessary. At that time useless criminal law, we are proceeding. That law is only giving support but not give a peaceful life. So, I giving one suggestion for criminal law and other laws are amended there section include time period for disposing gravity of cases. If amended criminal law and other laws along with time period and dispose cases time to time. Therefore, there is no problem in getting justice on the ground of delay.

On the basis of the above study the following guidelines have been suggested for the exercise of the power of pardon:

1. Time limit: A certain time limit should be set within which the executive will have to exercise its power.

2. Logical decisions: The executive should give logical decisions. This requirement is further enhanced by the fact that there is no appeal or review against the President's decision.

3. Procedures to be made public: The procedures governing the mercy power should be made public by the Home Ministry immediately after the executive decision is taken.

4. Judicial review: Although courts have recognized that the substance of a pardon decision is not subject to judicial review, limitations on the pardon power may be subject to enforcement by the courts.

5. Right to be heard: All applicants must have the right to personal appearance before the decision-maker.

6. Advisory Board: The Executive can delegate the power of pardon only to an Advisory Board constituted for the purpose. The petitioner's application for clemency should be sent to this board, headed by the President. This board may be empowered to receive reports from the police and assist the probation officers in its decision. The decision made by the board is likely to be more uniform than the decision of one person at different times in similar cases.

7. Independent Power: Executive pardon is a constitutional power and it is up to the President and the Governor to exercise it independently. The Council of Ministers should not be allowed to advise executive heads on this issue. This is to reduce political interference to the minimum extent.

It is submitted that ultimately, only effective guidelines ensuring fair and equitable execution can guarantee the proper exercise of power.

REFERENCES:

1. Bachan Singh v. State of Punjab (1980) 2 SCC 684.

2. https://www.drishtiias.com/daily-updates/daily-news-analysis/mercy-petition-2

3. Dr. Justice V.S. Malimath, Committee on Reforms of Criminal Justice System, Report VOLUME I, INDIA March 2003 Page no.175

4. Devender Pal Singh v. State (NCT of Delhi) (2013) 6 SCR 676

5. Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234

6. Asian Centre for Human Rights (ACHR)

7. Sangeet and another vs. State of Haryana SC Criminal Appeal No 490-91 of 2011

8. Maru Ram v. Union of India, (1981) 1 SCC 107,

9. https://timesofindia.indiatimes.com/city/chandigarh/bhullars-premature-release-hc-notice-to-nct-delhi-seeking-reply-on-decision/articleshow/101501718.cms

Received on 12.06.2024 Modified on 20.06.2024

Int. J. Rev. and Res. Social Sci. 2024; 12(2):93-96.

DOI: 10.52711/2454-2687.2024.00015