MERCY PETITION-SC GUIDELINES-EYE OF THE STORM

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Mercy-No Mercy

Sidharth Arora
Advocate,Delhi High Court

In a civilized country, nothing can be more precious than the life and liberty of it’s citizens. Of all the parts of the Constitution nowhere else has been a more vociferous advocacy of the Right to Life and Personal Liberty than in Article 21 of the Constitution. The words and the spirit of the said Article guarantees that the Liberty conferred upon each of the citizens cannot be taken away except by the due process of law.

The courts have been zealously protecting the Fundamental rights of the citizens and have never failed to take an opportunity to uphold the well enshrined spirit of the Constitution that whenever due to any action or inaction of the Legislature the Fundamental rights of a person is violated, the provisions of Art.32 may be used to protect and enforce the rights by the means of Writs. The power to move the court in such a manner is the cornerstone of the democratic edifice raised by the Constitution.

A similar question of Law which confronts the Legal minds in the highest court of the Land deals with the concept of Commutation of Death Sentence and Mercy Petitions. We will have a quick but critical look at these aspects in the next few paras.

Commutation of Death sentence is provided under the provisions of Article 72 /Art.161, wherein,the President and the Governor of the state respectively has been given power to suspend, remit, and commute the sentence in certain case. This is an extraordinary provision of law on the lines of the Royal Pardon in English Law. Accordingly the Executive can seek Judicial records from the court pertaining to matter at hand, interpret evidence and choose to either use the power of ‘pardon’ or not. It is not a case of judicial review though it may look like one but as mentioned above; it is an extraordinary power vested in the Head of the State. No Questions asked. The petitions for the loss of better words have been popularly called Mercy Petitions and have been the burning topics in the wake of cases such as Rajiv Gandhi Assassination, Bhullar etc.

On the face of it there’s no scope of a legal conflict in the said provision. Then what is causing the storm in tea cup, if I daresay. Well for one, it is not. And much of it has been caused by the tardy functioning of the Government system. Let me walk you through the process of Mercy Petition.
Once the Final judgement upholding the Death Sentence is passed by the Highest Court, the Convict moves a petition U/A.72/161 as the case may be seeking Commutation of Death sentence to Life Imprisonment. The Executive seeks the requisite records, applies mind to the particular case and passes its recommendation in affirmative/negative to the Ministry of Home and then the Mercy petition is labeled as accepted or dismissed.A pertinent part to be considered here is that the President or the Governor as the case may has to be advised by the Council of Ministers and follow a due process of law.

Now as the case is, in a real life scenario the Convict/Petitioner is hung in a ‘no life zone’ during the pendency of the petition. Every day he is living in a pendulum of Hope and Doom not knowing whether he has to live or die the next day. If such a dilemma continues for an indefinitely long period of time—Months and years –it is nothing short of torture and a serious violation of Right to Life as ingrained in our Constitution.

Taking a firm view of such a scenario the Supreme Court has upheld that an inordinate delay in deciding the Mercy Petition by the executive is a fit case FOR Limited judicial Review, wherein an unexplained, inordinate delay in deciding the mercy petition keeping the Condemned convict in a suspense of his life and death has been held to be an infringement of his Fundamental Right as guaranteed under Article 21.It had been brought to the notice of the court that the average time period to decide on the Mercy petitions by the executive though indefinite stretched to 5 years or even more in some cases.

Considering all the facts and superseding circumstances in a Landmark Judgement ,the Supreme Court in the exercise of its Limited JUDICIAL REVIEW commuted the death sentence of all petitioners in the infamous Rajiv Gandhi assassination case to Life Imprisonment.

The decision in the matter of Shatrughan Chauhan & ORS. Vs. Union of India is a landmark in the principle of Mercy jurisprudence which is an evolving jurisprudence which India has to its credit at the forefront of International legal arena.

SUMMARY:
Life is not only in years but also in it’s quality.A life which is fearing death the next second is not worthy of being called Life at least not by the makers of our Constitution.The above judgement is a fine example of Legal wisdom wherein the decision of the executive is not touched or attempted to be brought within Judicial review but the procedure of dealing with clemency /mercy petitions is dealt by Limited judicial review and when observed to be violative of Fundamental Rights U/A.21 were interpreted in the favor of commutation of death sentence to life Imprisonment.

REFERENCE:
http://indiankanoon.org/doc/59968841/
Shatrughan Chauhan & Anr vs Union Of India & Ors on 21 January, 2014