CONCEPT OF MERCY PETITION, PRESIDENTIAL PARDON AND JUDICIAL REVIEW

Two Death Convicts in the Nirbhaya case had submitted Mercy Petitions before the President of India. Their Curative Petition was earlier rejected by the Hon’ble Supreme Court. Thus, submitting this Mercy Petition was the last legal remedy available to them.

After extinguishing all the reliefs available in the court of law, either the convict in person or any of his relative can submit a written mercy petition in writing to the President. Mercy petition is basically a relief sought by the convict that the death penalty given to him should be reconsidered or altered to life time imprisonment.

Mercy Petition: Provisions Under Indian Law

Article 72 of Indian Constitution grants power to the President to grant pardons, suspend, remit or commute sentences in certain cases. As per this power the President has sole authority to grant mercy petitions in criminal cases on the aid and advice of the Council of Ministers. Similarly, the Indian Constitution also grants power to the Governor as per Article 161 to grant pardons, suspend, remit or commute sentences of any convict for an offence against law or to a matter to which executive power of state extends.

In the case of Keher Singh Anr V. Union of India 1989 AIR 653, the Supreme Court observed that, “it is approximate that in the matter of life and personal liberty, another degree of protection should be extended by entrusting power to some high authority to consider the option of commutation. The power so entrusted is a power belonging to the people and lies in the highest dignitary of the State.

The President while exercising his power can also scrutinize the evidence on record. In doing so, the President cannot amend or modify or supersede the judicial record. Also, there is no right available to the person condemned to insist on oral hearing before the President.

Judicial Review of Mercy Petition   

According to Webster Dictionary of Law “Judicial Review is the power of a court to review the action of public sector bodies in terms of their constitutionality in some jurisdiction, it is also possible to review the constitutionality of law itself.” Judicial review in an independent judiciary is a fundamental feature, and it assures faith in the Constitution. 

The limits of Judicial Review as granted under Article 72 and 161 of the Indian Constitution have been outlined in the case of Maru Ram v. Union of India 1980 AIR 2147. The Supreme Court observed that all public power, including constitutional power should not be exercised arbitrarily or mala fide. The bench in Maru Ram case also noted that the power conferred by Article 72 is a highly privileged power vested by the Constitution in the highest functionary of the Union.

Judicial Review of the order of the President or the Governor under Article 72 or article 161 can be impugned on the following grounds: –

• If the order had been passed without the application of mind
• That the order is mala fide
• That the order have been passed on extraneous or wholly irrelevant considerations.
• That relevant materials have bee kept out of consideration.
• That the order suffers from arbitrariness.

Procedure of Mercy Petition

In the case of Shatrughnan Chauhan & Anr v. Union of India Writ Petition (Criminal) no. 55 of 2013 certain guidelines for mercy petitions were laid down which are as follows: –

• As soon as the mercy petition is received, the Ministry of Home Affairs should without any delay place it along with court records before the President for his consideration.
• Rejection of any mercy petition should be communicated to the prisoner and his family members in writing.
• Death Penalty convicts have all rights to receive a copy of rejection of their mercy petition.
• Also, there should be a minimum 14 days interval between the rejection of mercy petition and execution of death penalty.

According to an information released by the Government under The Right to Information Act, out of 77 Mercy Petitions received 69 have been rejected by the presiding President between 1991 to 2010. Since independence a total of 308 mercy petitions have been have been received, out of which only 132 have been accepted and 440 have been rejected.  According to our Former President Mrs Pratibha Patil, “The Death Penalty does not serve the penological goal of deterrence any more than life imprisonment”.

Aakritee Gambhir

Associate

The Indian Lawyer