The State and Central Governments have powers to commute death sentences after their final judicial confirmation. This power, unlike judicial power, is of the widest amplitude and not circumscribed, except that its exercise must be bona fide. Issues often alien and irrelevant to legal adjudication – morality, ethics, public good, and policy considerations are intrinsically appropriate to the exercise of clemency powers. These powers exist because in appropriate cases the strict requirements of law need to be tempered and departed from to reach a truly just outcome in its widest sense.
The executive’s powers to commute a death sentence, in other words, exist to remedy deficiencies in the strict application of the law. Therefore, in jurisdictions retaining capital punishment, the proper exercise of mercy powers is of the utmost importance given that human lives depend on it. Every citizen has a right to petition the government to commute any death sentence, since the state’s power to take life emanates from the people, and executions are carried out in their name.
Clemency powers of either pardoning an offender or reducing or altering the punishment awarded, have their provenance in similar powers, which, since time immemorial, have vested in the sovereign. However, their
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In exercise of these clemency powers, the President and Governor are empowered to scrutinize the record of the case and differ with the judicial verdict on the point of guilt or sentence. Even when they do not so differ, they are empowered to exercise their clemency powers to ameliorate hardship, correct error, or to do complete justice in a case by taking into account factors that are outside and beyond the judicial ken. They are also empowered to look at fresh evidence, which was not placed before the courts. In Kehar Singh v. Union of India, a Constitution Bench (five judges) held as