Context:

• Recently the President of India 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.

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.

Source:Indian Express