Has mercy power been used rationally? Rape and rape-cum-murder should have been put at the top of the list of heinous offences. But, it was pushed to that space only after Nirbhaya died of a brutal sexual assault triggering unprecedented public outrage in the national Capital. The ferocity of public anger over the incident reflecting years of pent-up frustration over denial of justice to victims of sexual assault forced the soft-spoken home minister Sushilkumar Shinde to promise that he would never recommend to President for commutation of death sentence awarded to rape-cum-murder convicts. Rape is punishable by a maximum sentence of a seven-year jail term. It attracts a maximum sentence of life imprisonment if a woman was sexually assaulted in police or judicial custody, or by a superior taking advantage of his official position. It also attracts life imprisonment if a woman is gang raped or assaulted when she is pregnant. If the Nirbhaya incident stirred the government's legislative instinct to appoint a committee headed by Justice J S Verma to suggest necessary changes in the existing laws to inflict appropriate and adequate punishment on those who sexually assault women, it should also have stimulated a similar exercise to suggest a transparent procedure for President and Governors in exercising their mercy jurisdictions. Since Constitution empowered President and Governors with the mercy powers, it had been exercised in the most non-transparent way in a somewhat illogical manner in which political considerations outweighed reason. The governments, who advise President and Governors on exercise of mercy powers to grant pardon, and to suspend, remit or commute sentence awarded to convicts, have seldom done it for the purpose of doing complete justice. In Andhra, the Governor granted remission of sentence to a murder convict on the ground that he was a "good Congress worker". When this was challenged through a PIL by one Epuru Sudhakar, the Supreme Court frowned upon the casual manner in which the constitutional power had been exercised. In its judgment on October 11, 2006, the court discussed the genesis of mercy jurisprudence. It said that the philosophy underlying the pardon power is that "every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of deity whose judgments are always tempered with mercy." It said the main purpose behind bestowing of President and Governors with pardon powers was to prevent injustice to a person who has been convicted, especially when the facts of such injustice were not properly produced in the trial court, but such power is not a proper remedy on account of failure to use any matter which was known to defendant or his counsel and was available at time of new trial motion. What infuriated the court was the political consideration which weighed with the Andhra government to recommend remission of sentence for a murder convict Gouru Venkata Reddy. It quashed the Governor's order granting remission of sentence and said the issue needed fresh consideration. In most of the cases where President or Governors exercise mercy powers to pardon or grant remission or commute the sentence of a convict, reasons have never been made public. Thus, citizens who suffered because of the crime or its traumatic effect on the society never get to know why the convict was allowed to serve a sentence lesser than what the courts awarded him after weighing the gravity of the crime. A similar incident about the hush-hush manner in which Presidential pardons are granted in India came to light when five Latvians, who were convicted and sentences to life imprisonment for the Purulia arms drop case, were whisked away from prison to airport and allowed to leave the country in July, 2000. Didn't the authorities tell us that it was a serious crime? Didn't they tell us that part of the deadly cache of arms airdropped by the Latvians in 1995 could have reached the Maoists who are ambushing security forces? Why would the government keep secret the reasons for grant of remission of sentence to Latvians convicted in case having such serious implications for the nation? The government did not take long to reject the mercy petition of rape-cum-murder convict Dhananjoy Chatterjee. He was hanged to death. The mercy plea of Ajmal Kasab, the condemned prisoner in 26/11 terror attack on Mumbai, was also decided with lightning speed. Why does it take so long for the government to decide on the clemency plea of Mohd Afzal? The SC has long reserved a judgment on this issue and may soon spell out a clear guideline on how the government should conduct when it comes to recommending President or Governors to exercise their mercy powers. Has mercy power been used rationally? - The Times of India ******************************** ]Food for thought. Also the issue of a Juvenile going free of the most heinous of crime because he is a juvenile, when actually he was the most brutal assailant in the Delhi rape case.