Clemency refers to the process through which the Governor considers requests for pardons, commutations, and reprieves after conviction. The President and Governors have powers under the Indian Constitution to grant pardons or show mercy to criminals sentenced to death. Anyone serving a term of any number of years or a death sentence can apply for clemency. Delays in deciding clemency petitions amount to mental cruelty.

1. CLEMENCY SUCHITRA BAI PATENTS DEPARTMENT ALTACIT GLOBAL

2. MEANING OF CLEMENCY Clemency is the process through which the Governor considers requests for granting reprieves, commutations of sentence, and pardons after conviction.

3. MEANING OF PARDON A pardon is the exemption of a convicted person from the penalties of an offense or crime. A pardon can be requested by someone who is no longer incarcerated.

4. WHO MAY APPLY FOR CLEMENCY? Any person serving a term of any number of years, life, life without parole, or a sentence of death may apply for clemency. A person who is not presently incarcerated may also apply.

5. INDIAN CONSTITUTION Articles 72 and 161 of the Indian Constitution confers powers on the President and the Governors of various states, respectively to grant pardon or show mercy to criminals sentenced to death. These two articles of the Constitution of India endow the President and the Governor with the power to view the mercy applications of convicts with kindness.

6. PROVISION UNDER THE IPC The Indian Penal Code(1860) prescribes death as an alternative punishment for the seven offences, murder (Section 302) being one of them. Section 302 says: “Whoever commits murder shall be punished with death or imprisonment for life and also be liable to fine.” The sentencing procedure is prescribed in Section 354 (3) of the Code of Criminal Procedure (1973) which reads “when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgement shall state the reason for the sentence awarded and in the case of sentence of death the special reasons for such sentence.”

7. APPLICABLE CASES The powers of the President and the Governor are applicable in these cases: a. Where the punishment or sentence is by a court martial. b. The offence is against any law relating to a matter to which the executive power of the union extends. c. Where the sentence is a sentence of death.

8. FACTORS TO BE CONSIDERED The gravity of the offence and the observations made by the court. The background of the convict and the reasons for seeking mercy are also considered before taking a final decision.

9. PROCEDURE FOR REQUESTING CLEMENCY Anyone including foreign nationals can send a mercy petition on behalf of a convict on a death row to the President’s Office or the Union Ministry of Home Affairs (MHA). These pleas can also be sent to the Governors who send them to the MHA. A convict can also file a mercy petition from jail through the authorities or his family. These petitions can also be sent through email to the President’s office or the Secretariat.

10. SMT. TRIVENIBEN V. STATE OF GUJARAT 1989 (1) SCC 678 Held that undue delay in execution of death sentences amounts to violations of fundamental rights.

11. DAYA SINGH V. UNION OF INDIA 1991(3) SCC 61 Supreme Court stated that delay in execution of death sentence should be “sufficient to entitle the person under sentence of death to invoke Article 21 and demand quashing of death sentence”.

12. TIMELIMIT FOR DISPOSAL OF PETITION Supreme Court has said that clemency pleas should be disposed of within three months of a death penalty being confirmed. Failing this, it would amount to mental cruelty to the condemned person and his or her relatives.

13. IN RE MOHAMMAD AFZAL Afzal Guru , is a kashmiri convicted of conspiracy in the December 2001 attach on the Indian Parliament was sentenced to death by the Supreme Court of India in 2004. The sentence was scheduled to be carried out on 20 October 2006. Afzal was given a stay of execution and remains on death row .

14. OPPOSITIONS FOR GRANTING CLEMENCY FOR AFZAL M.S. Bitta, Chairman of the All India Anti-Terrorist Front has urged the President of India not to accept any clemency pleas on Afzal's behalf. He warned that his organisation would launch agitations if Afzal was pardoned. He also criticised statements of various political leaders and blamed them for "encouraging activities of militants in Jammu and Kashmir".

15. FAVOURING CLEMENCY Ms. Mehbooba Mufti, President and MP, of the Jammu and Kashmir People’s Democratic Party commented that the Centre should pardon Afzal if Pakistan accepted the clemency appeal for Sarabjit Singh. Ms. Mufti, said that if clemency appeals were made for Sarabjit citing his Indian nationality, voices should also be raised for Afzal for "he too is an Indian citizen". "Two citizens of India cannot be treated with different yardsticks”

16. IN RE RAJIV GANDHI ASSASSINATION CASE Out of the 26 Accused the Supreme Court confirmed the conviction under Section 120 B read with 302 IPC only as against 7 accused viz., 1) Nalini b) Santhan (2) Raguraj (3) Murugan (4) Robert Pyas (5) Jayakumar (6) Ravichandran @ Ravi and (7) Perarivalan @ Arivu. The conviction and sentence for the remaining 19 accused as regards offense u/s 120B and 302 IPC was set aside. Some of them were convicted for lesser offences and set free if they had served the maximum sentence; a few were fully acquitted and set free. Of the seven accused referred to above, the death sentence against only four accused, viz namely Nalini, Santhan@ Ravidas, Murugan@ Thas and Perarivalan@ Arivu were confirmed. The remaining 3 were sentenced to life time imprisonment.

17. Contd… All the four persons filed petitions seeking commutation of the death sentences. In April 2000, the Governor of Tamil Nadu commuted the death sentence of Nalini to life time imprisonment and she is currently lodged in women's prison, Vellore.

18. Contd… The commutation petition of Santhan@ Ravidas, Murugan@ Thas and Perarivalan@ Arivu which was pending before the president of India waiting for about 12 years was finally rejected by in late July 2011.

19. RELIEF FROM THE MADRAS HIGH COURT As a form of interim relief the High Court of Madras headed by a bench comprising justices C Nagappan and M Sathayanarayanan observed there had been a delay of over 11 years in the disposal of the mercy petitions filed by the convicts to the President seeking clemency and suspended the death penalty of Santhan, Murugan and Perarivalan for eight weeks to the three accused.

20. THANK YOU