It was the morning of September 30, 2013, and Siddharth Sharma, a criminal lawyer, had been waiting to meet a client at the Haridwar District Jail in Uttarakhand. When Sunder Singh entered the room, he was withdrawn. He kept rubbing his hands together anxiously. He seemed to have no idea where he was.
“I came here because my house collapsed,” he told Sharma. In fact, Singh had been sentenced to death nine years earlier, for killing five members of his own family. Prison staff explained to Sharma that Singh had been diagnosed with schizophrenia in 2010.
Sharma was stunned. In 2013, President Pranab Mukherjee had rejected his appeal for mercy on the advice of the Ministry of Home Affairs (MHA). Had the government recommended executing an insane man?
On January 21, 2014 — within four months of Sharma’s visit — Singh and 14 others were taken off death row by the Supreme Court because of flaws in the rejection of their “mercy petitions.” By December 2015, courts had commuted the sentences of eight others in unrelated cases for the same reasons.
Shatrughan Chauhan and Another vs Union of India and Others, January 21, 2014
Taken together, it was a stinging rebuke to the clemency process: President Pranab Mukherjee had rejected 19 of those mercy petitions, and Pratibha Patil four, all on the advice of the MHA. When these rejections were challenged in court, every one of them was quashed on constitutional grounds. The MHA did not respond to our questions and the president’s office declined to comment for this story.
These judgments laid bare an otherwise opaque process, showing it up for glaring instances of delay and oversight. Some prisoners had waited for over a decade to learn the fate of their petitions; others had been denied mercy even after providing evidence that could save their lives. This, the courts held, violated the prisoners’ right to life because the Constitution guaranteed them a fair shot at mercy. That’s all it really is: a shot in the dark.
“The moment the mercy petition is rejected, all stops are removed,” said Yug Chaudhry, a criminal lawyer representing several people on death row. The next step is a death warrant, issued by a magistrate, assigning a date and time for the execution. It can be stayed only by a court order.
In April 2013, Chaudhry, Sharma and other lawyers began to hear rumors that President Pranab Mukherjee had rejected a batch of petitions that had been pending for years. But they didn't know which ones, and there was no way to find out soon. Fearing swift, secret executions similar to those of Afzal Guru and Ajmal Kasab, they challenged several petitions at once. In three different late-night hearings, they persuaded the Supreme Court to stay 15 executions, including Singh’s.
So closed off is the clemency process that Singh’s diagnosis didn’t come to light until months after his execution was put off, when Sharma, one of the lawyers engaged by an advocacy group to represent Singh, met him for the first time. But Sharma didn’t realise the extent of the negligence until the government disclosed the files to the Supreme Court.
The People’s Union of Democratic Rights filed several writ petitions on behalf of prisoners on death row.
If they had not challenged the rejections, they would never have seen the files: the trial records, medical reports and recommendations of jail superintendents along with the correspondence between the MHA and the president.
Singh’s petition followed the usual path. First, it was processed by the state government. After the governor’s rejection, it was sent to the central government. It worked its way up from the bottom of the MHA, accumulating notes on the way. The home minister prepared a third and final note for the president, advising him to reject.
On March 31, 2013, President Pranab Mukherjee rejected Singh’s petition. Neither the state government nor the MHA can claim they didn’t know of Singh’s diagnosis because the disclosed files show that they did. The state government had advised the governor to reject Singh’s mercy petition. Yet, its note to the MHA mentioned that Singh was mentally ill and that he was being treated at a psychiatric hospital.
Singh’s medical report from December 2012 said he was “suicidally inclined.” Again, in February 2013, it said he was suffering from “undifferentiated schizophrenia” and needed “long-term management.” The jail staff mailed these reports to the central government. Still, the MHA recommended rejection, and the president complied.
On April 5, 2013, jail staff informed Singh that his mercy petition had been rejected. According to his case files, he didn’t “appear to understand and did not react.”
“Are we a country which executes insane people?” said Chaudhry. “It’s against all international law. It’s against our law. It’s against our prison manuals.”
Article 21 of the Indian Constitution, Para 386 and 387, UP Jail Manual, and The International Covenant on Civil and Political Rights
Chaudhry believes such lapses are the result of a process in which the prisoner is completely cut off. Neither prisoners nor their lawyers can track the progress of the appeal. Most of them are never given a copy of the document that says they have exhausted their last appeal to live. Those who do get a copy can rarely read it; the rejection letters are almost always in English.
The letters rarely deviate from the script. But Chaudhry thumbed through his clients’ rejection letters to find one that did: Mahendra Nath Das, a prisoner on death row in Assam, was informed by the state government that President Pratibha Patil was “pleased to reject his mercy petition.”
The president is not required to explain the reasoning behind the decision.
The power to grant mercy is sweeping. The president — and by extension the MHA — is not bound by the judgments that found the prisoners guilty or those that sentenced them to death. If granted, mercy does not scrub the conviction. It only reduces the sentence. Even if the president is convinced of the prisoner’s guilt, the thornier question remains: should he or she be hanged?
But this is not the president's decision alone: the home minister’s advice is binding. Other than the pocket veto, the president has no option but to sign on the dotted line. In fact, when a new home minister enters office, the president sends back every pending petition for a review. If the home minister changes, the recommendation might change with him.
Since the president cannot be expected to read every document in the file, the notes from the MHA are crucial pointers. In these notes, the MHA is expected to consider age, income, disabilities, motive, insufficient evidence, disagreement among judges, delays, and so on. The notes must encompass what the law often cannot: the years spent in a cell awaiting the gallows, or any inkling of reform from the prisoner. They must grapple with doubt: is there a possibility, however remote, that the prisoner could be innocent?
They must also wonder if murderers can be victims: Maganlal Barela, an impoverished farmer, beheaded his five daughters and tried to kill himself. He was saved by his brother, and then sentenced to death by the courts. In jail, he was diagnosed with mental illness. The superintendent of the jail recommended commuting his sentence on account of his medical reports and his “good behavior.” But his medical report did not make it into that final note. The president rejected his petition.
“Nobody is looking at the papers,” said Sharma. “There is error and miscarriage enclosed in file after file because you and I cannot look at them.” So common are these instances of neglect and error that there is an official term for them: “non-application of mind.”
When the Supreme Court struck down 15 death sentences in one fell swoop, it did so based on the MHA’s files. These were the very files the president was supposed to have examined before rejecting mercy. In every case, the court found reasons for commuting the death sentence.
Two mercy petitions were processed, and rejection recommended, without the trial records. Gurmeet Singh was sentenced to death for killing 13 people in his family, but the two High Court judges at his trial disagreed over his guilt; a third judge confirmed his death sentence. Praveen Kumar, also sentenced for murder, alleged that he had been in solitary confinement for 11 years when the president rejected his mercy petition. Both Sundar Singh and Barela had been diagnosed with mental illness before their petitions were rejected. Indefinite solitary confinement is against the law, as is execution of a person suffering from mental illness.
In every case, the court found delay: it ranged from Barela, who had been in prison for three years, to Gurmeet Singh, who was sentenced 25 years ago. Kumar’s mercy petition had been pending for 11 years. It ruled that excessive and unexplained delay in rejecting mercy petitions amounts to “torture.”
“The Supreme Court found them deserving of the death sentence,” said Sharma. “After they filed their mercy petitions, you (the government) messed up that phase. You kept them hanging for too long. You kept them in solitary. So now they can’t be executed.”
Every execution, according to Sharma, is waiting to be challenged. “We are an adversarial system,” he added. “It is only when you contest, you get a chance.”
But not everyone has the opportunity to contest. Challenges to mercy petitions are increasingly common now with more lawyers willing and able to take on death penalty cases. Still, it’s up to the court to decide whether it wants to entertain the challenge or even call for the files from the MHA.
That’s not the only part of this process that is arbitrary. It’s impossible to discount the role played by individual presidents, according to Bikram Jeet Batra, an independent researcher, who has studied clemency petitions in India. Files from the 1950s and 1960s, for instance, show that presidents and home ministers painstakingly examined case files. Sentences were often commuted on the basis of minute gaps in evidence or even the quality of legal aid.
That seems to have changed by the ‘90s. President Shankar Dayal Sharma, according to Batra, “did little more than sign the rejection order sent to him.” Other than K.R. Narayanan and A. P. J. Abdul Kalam, who actively used their veto, Batra said “recent presidents have been far more willing to accept the views of the MHA.”
What changed? It’s hard to say because most of the files from the 1970s can no longer be found. They are neither in the archives nor at the MHA. The available files are for commuted cases, which are eventually dispatched to the archives. The rest — files on the thousands of prisoners whose mercy petitions were rejected — have likely been burnt. The MHA’s judicial division is authorised to destroy 10-year-old files on rejected mercy petitions.
The Public Records Act, 1995 and The Public Record Rules, 1997
Batra, however, was able to inspect a handful of files that weren’t destroyed yet, including those of Harjinder Singh Jinda and Sukhdev Singh Sukha. Both men were sentenced to death for killing General Arun Vaidya. They were also implicated in the murder of Congress MP Lalit Maken and his wife, Gitanjali.
On October 8, 1992, mercy petitions were filed on behalf of Jinda and Sukha by a human rights lawyer. Later that day, the home minister recommended rejection. President Shankar Dayal Sharma rejected the petitions. But nowhere in the file does it mention that Gitanjali Maken was Sharma’s daughter.
Jinda and Suka were never tried for Maken’s murder. “But that is quite irrelevant in this situation where the president of India appears to have decided a mercy petition where the death row prisoners are also believed to have killed his daughter,” said Batra.
Around 4 a.m. on the morning of October 9, 1992, Jinda and Sukha were hanged at the Yerawada Jail in Pune.