President Droupadi Murmu has rejected a mercy petition filed by Pakistani national Mohammed Arif who was sentenced to death for the December 22, 2000 terrorist attack at the Red Fort in which three people including two Army jawans were killed. The President’s decision, made on May 27, came after Arif failed to obtain relief from the Delhi High Court and Supreme Court in his appeals against a trial court order of October 2005. He can challenge the President’s decision and prolong the proceedings further. PARDONING POWER OF THE PRESIDENT Article 72 gives pardoning power to the president. It says: The President shall have the powers to grant pardons, reprives, respite or remission of punishment or to suspend remit or commute an offence of any person convicted of any offence:
  • In all cases where the punishment is of court marshall.
  • In all cases where punishment is given for violating a law made by the central govt and its executive powers extend.
Article 161 grants pardoning powers to the Governor also, but there governor cannot exercise these powers in case of a Court Martial, death sentence & a law made by the union.

THE TERMINOLOGIES

Pardon: The President can completely absolve the charges. Commute: To reduce the nature of punishment from a much harsher one to a less harsher. For example: Death Sentence to Life imprisonment. Remission: To reduce the punishment without changing the nature of the punishment. For example: Rigourous imprisonment for 15 years to 10 years. Reprive: A delay is allowed to give convict some time to prove innocence. Respite: To reduce the degree of punishment looking at specific grounds like pregnancy or old age.

STANDARDS APPLIED BY COURTS DURING DEATH SENTENCE

In 1980, the Supreme Court (Bachan Singh v. State of Punjab) upheld the constitutionality of the death penalty, but established important guardrails. “Judges should never be bloodthirsty”, and the death penalty should not be awarded “save in the rarest of rare cases when the alternative option is unquestionably foreclosed”, and all possible mitigating circumstances have been considered. The court has reaffirmed the “rarest of rare” standard in several decisions since then. The Report of the 262nd Law Commission published in 2015 recommended the “absolute abolition” of the death penalty “for all crimes other than terrorism related offences and waging war”.

THE JOURNEY IN COURTS

  • In 2007, the Delhi High Court confirmed the trial court’s decision to sentence Arif to death.
  • Arif then appealed to the Supreme Court. On August 10, 2011, a Bench of Justices V S Sirpurkar and T S Thakur rejected the appeal, calling the attack an “undeclared war by some foreign mercenaries”.
    • Providing a historical overview of Red Fort to highlight its significance as a national monument, the Bench stated that “even without any reference to any other case law”, the case satisfies the standard of the “rarest of rare”.
  • Arif continued to file petitions at the Supreme Court against the death sentence.
    • Review petition rejected in 2012.
    • Curative petition (where the SC can only intervene if there is an error in its judgement) rejected in 2014.
    • In 2014, Arif filed another writ petition, arguing that cases arising out of a death sentence should be heard by Bench of three judges or more.
      • SC agreed to this demand.
    • The case was then placed before a three-judge Bench led by former Chief Justice of India U U Lalit. On November 3, 2022, nearly 22 years after the attack, the Bench rejected Arif’s plea, finding that “there was a direct attack on the unity, integrity and sovereignty of India.”
CAN ARIF CHALLENGE PRESIDENT’S REJECTION? Arif has the option of challenging the President’s rejection of his mercy petition. At a procedural level, the apex court has held that the President’s power must be exercised based on the aid and advice of the Council of Ministers, and can be challenged on multiple grounds —
  • Relevant material was not considered,
  • The power was exercised based on political considerations, or that there was no application of mind.
HAS THE SC COMMUTED DEATH SENTENCES? The top court has also commuted the death sentence in cases of inordinate delay in deciding mercy petitions, such as in the case of Shatrugan Chauhan v. State of U.P. (2014). The court also commuted the sentence of one Gurmeet Singh after he spent 27 years in custody (and 21 years on death row). The court found that there was an inordinate delay in deciding his mercy petition, which was disposed of in March 2013 more than seven years after the Supreme Court first upheld the death sentence.