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The Status of Mercy Petitions in India

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The Status of Mercy Petitions in India The National Campaign for Abolition of Death Penalty in India - a programme of the Asian Centre for Human Rights (ACHR) supported by the European Commission under the European Instrument for Democracy and Human Rights (EIDHR) - conducts research, analysis and advocacy on issues relating to death penalty with the aim for its eventual abolition. THE STATUS OF MERCY The National Campaign for Abolition of Death Penalty in India has published the following reports relating to the issue of death penalty in India: PETITIONS IN INDIA • The Status of Mercy Petitions in India • Our Standards and Their Standards: India Vs Abolitionist Countries • India: Not safe for extradition of those facing death sentences? • The State of the Right to Life in India, August 2015 • India: Death Without Legal Sanction, June 2015 • India: Death despite dissenting judgements, 02 June 2015 THE S • India: Death in the name of conscience, May 2015 • Arbitrary on all Counts: Consideration of mercy pleas by President of India, 10 December T 2014 A T • Death Reserved for the Poor, November 2014 U S OF MERCY PE MERCY • Death penalty through self incrimination in India, October 2014 • India: Death Without the Right to Appeal, September 2014 • Award of enhanced punishment of death by the Supreme Court, 26 September 2014 NO • India: Death Penalty Has No Deterrence, August 2014 MERCY • India: Death Penalty Statistics, June 2014 • The Case for Abolition of Death Penalty in India - ACHR’s submission to the Law T I Commission of India on Capital Punishment, May 2014 T ION • Mercy on Trial in India, 22 October 2013 • The State of Death Penalty in India 2013, 14 February 2013 S IN The following publications are expected: I NDIA • Right to life in the context of death penalty: Death Penalty and the UN Human Rights Committee • Death Penalty in India: Issues and contentions All the reports are available at http://www. achrweb.org/death_penalty.html Acknowledgement: This report is being published by the “National Campaign for Abolition of Death Penalty in India” - a project funded by the European Commission under the EIDHR. The views expressed are of the Asian Centre for Human Rights, and not of the European Commission. ASIAN CENTRE FOR HUMAN RIGHTS C-3/441-C, Janakpuri, New Delhi 110058 INDIA Phone/Fax: +91 11 25620583, 45501889 Asian Centre For Human Rights Website: www.achrweb.org Email: [email protected] THE STATUS OF MERCY PETITIONS IN INDIA Asian Centre For Human Rights The Status of Mercy Petitions in India Published by: Asian Centre for Human Rights (ACHR) C-3/441-Second Floor, Janakpuri, New Delhi 110058, INDIA Tel/Fax: +91 11 25620583, 25503624 Website: www.achrweb.org Email: [email protected] First Published: 9th October 2015 ©Asian Centre for Human Rights No part of this publication can be reproduced or transmitted in any form or by any means without prior permission of the publisher. ISBN: 978-81-88987-57-3 Suggested contribution: Rs. 695 /- Acknowledgement: This report is being published by the “National Campaign for Abolition of Death Penalty in India” - a project funded by the European Commission under the EIDHR. The views expressed are of the Asian Centre for Human Rights, and not of the European Commission. ii CONTENTS 1. Executive summary ............................................................................ 1 1.1. Violations of the instructions for dealing with mercy petitions ...... 2 1.2. Violations of the guidelines for granting mercy ............................ 5 1.3. Conclusion and recommendations ................................................. 8 2. Granting mercy: Not a mere prerogative of the President .............. 11 3. Statistics on mercy petitions ............................................................. 13 4. Violations of the instructions for dealing with mercy petitions ...... 18 4.1. Instructions for dealing with mercy petitions .............................. 18 4.2. Violations of the instructions for dealing with mercy petitions ... 24 i. Not providing the mandatory documents necessary for filing mercy petitions ........................................................... 24 ii. Non communication of rejection of mercy petitions ............. 30 The case of Afzal Guru: ...................................................... 31 iii. Suppression of facts from the President ................................ 34 iv. Attempt to subvert the prisoners’ right to avail judicial remedies against rejection of mercy petitions ....................... 36 v. The scandal: The loss of mercy petition files by the President’s Secretariat .......................................................... 37 5. Violations of the guidelines for granting mercy .............................. 40 Guideline I. Personality of the accused (such as age, sex or mental deficiency) or circumstances of the case (such as provocation or similar justification) ............................................ 41 Guideline II: Cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction ................................................................. 43 iii The Status of Mercy Petitions in India Guideline III: Cases where it is alleged that fresh evidence is obtainable mainly with a view to seeing whether fresh enquiry is justified ...................................................................... 45 Guideline IV: Where the High Court has reversed on appeal an acquittal by a Session Judge or has on appeal enhanced the sentence. ............................................................................... 48 Guideline V: Difference of opinion in a Bench of two Judges necessitating reference to the third Judge of the High Court ....... 48 Guideline VII: Long delays in the investigations and trial etc. ..... 54 MHA’s own guideline: No mercy in terror cases .......................... 54 Supreme Court’s guidelines for safeguarding the interest of the death row convicts ............................................................ 54 6. Violations of the judgments of the Supreme Court ........................ 59 6.1. Delay as a ground for commutation ............................................ 59 The case of Holiram Bordoloi ..................................................... 61 6.2. Prohibition of solitary confinement ............................................ 62 6.3. Per incuriam cases ....................................................................... 65 6.4. Consultation with the Presiding judge under Section 432(2) of the CrPC ............................................................................... 66 7. The poor and the question of arbitrary mercy ................................ 68 7.1. The question of poverty and access to justice ............................... 68 7.2. The issue of arbitrariness in granting mercy ................................. 71 7.2.1. Cases of murder of spouse and children................................ 72 i Cases of murder of spouse and children commuted by the President ........................................................... 73 ii. Cases of murder of spouse and children rejected by the President ........................................................... 75 7.2.2. Cases of murder by servants for gains ................................... 78 i. Cases of murder by servants for gains commuted by the President ........................................................... 79 ii. Cases of murder by servants for gains rejected by the President ........................................................... 80 iv The Status of Mercy Petitions in India 7.2.3. Cases of murder due to enmity .......................................... 82 i. Cases of murder due to enmity commuted by the President ...................................................................... 83 ii. Cases of murder due to enmity rejected by the President ................................................................ 91 7.2.4. Cases of murder by relatives ................................................. 95 i. Cases of murder by relatives rejected by the President ...................................................................... 95 ii. Cases of murder by relatives commuted by the President .................................................................... 105 7.2.5. Cases of rape and murder of minor girls ............................. 108 i Cases of rape and murder of minor girls commuted by the President ......................................................... 109 ii. Cases of rape and murder of minor girls rejected by the President ......................................................... 113 7.2.6. Cases of kidnapping followed by murder for gains ............. 117 i Cases of kidnapping followed by murder for gains rejected by the President ............................................ 117 ii. Cases of kidnapping followed by murder for gains commuted by the President ........................................ 119 Annex – I: List of mercy petition cases since 1981 as provided by the Ministry of Home Affairs on 28.03.2013 .............................................. 125 Annex – II: Statement on mercy petition cases of the President’s Secretariat dated 07.09.2015 ................................................................ 128 Annex – III: Explanation on ACHR’s 10-Point Recommendations on Consideration of Mercy Petitions for Reduction of Death Penalty in India ................................................................................................. 132 v The Status of Mercy Petitions
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