Posted on: July 10, 2020 Posted by: Nachiket Kulkarni Comments: 0
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An eye for an eye is condemned in modern civilized society. Law is an instrument to restore justice in the society by punishing the wrongdoer. Purpose of punishments is to create deterrence in the society from committing crime and to promote reforms in the behavior of the criminal. The provisions of pardons, remissions, commutation of sentences prescribed in the Constitution are reformatory measures in light of human rights.

Mercy petition is a Constitutional Right under Article 72 and 161 of the Constitution, reposed by the people in the highest dignitaries, the President and the Governor. It is a Constitutional remedy and it is not limited only to death sentence cases and should be construed accordingly. This provision confers a right to the accused that can be invoked only after confirmation of sentence. It holds power of pardons for all offences but the death sentence invokes most sentiment because it is irreversible once executed. Section 432 of Cr.P.C which provides power to suspend or remit sentences; compels the government to take into account the opinion of the presiding judge of the court before or by which the conviction was confirmed while deciding the petition; along with other relevant documents. While exercising the power, appropriate Government may at any point in time, without or with any conditions and subject to their fulfillment by the convict; suspend or remit any part of the sentence.

In the case of Sonu Sardar vs. Union of India, court held that this discretionary power cannot be taken away by any statutory provision or altered or modified further. Decisions of the President and the Governor are immune to judicial review. Since both of them act on the aid and advice of the cabinet, which is not immune; ultimately renders mercy petition subject to limited judicial review avoiding any mala fide decision or decision based upon extraneous factors. Thus wherever courts found that relevant and pertinent considerations were not taken into account while deciding mercy petitions, they have set aside the executive orders and recommended the matter for fresh considerations to the executive.

In the judgment of Epuru Sudhakara vs. Govt. of A.P. court held that, the executive clemency power has to be exercised on public welfare considerations alone, and it is to be weighed whether public welfare will be better served by inflicting less than what judiciary has fixed. The power must be exercised keeping in mind the precedent it sets. This view of the court is in furtherance to the object of provision of mercy petition to reward positive reforms by remission or commutation of sentence.

The right to file a mercy petition can be exercised after all the judicial processes are exhausted. Any convict cannot be said to be under sentence of death until his death sentence is final, conclusive and indefeasible after the exhaustion of all judicial and Constitutional remedies, which in any case cannot be altered further by any judicial or Constitutional process. This was held in the case of Sunil Batra vs. Delhi administration ors.

In the landmark judgment of Shatrughna Chauhan vs. Union of India, the Apex court held that, any unexplained, undue and inordinate delay caused in deciding mercy petitions is alone sufficient to commute sentence of death irrespective of the gravity of the offence or serious non IPC offences as long as the delay is not caused at the instance of the convict.

The court further held that remedy under Article 32 can be availed in case of inordinate delay in the execution of the death sentence once it is confirmed by exhausting judicial process and court cannot reopen any of the conclusion reached upon while confirming the sentence. The President under Article 72 has the power to scrutinize the evidence and deicide on merits whether it deserves grant of relief under that power. The contention that even if undue delay is caused the decision must be taken by the executive and not the judiciary, is rejected. Thus on the ground of supervening circumstances violating fundamental rights, Supreme Court may intervene for protection of fundamental rights and such intervention does not constitute to be a part of limited judicial review. To obtain documents required for deciding mercy petition, correspondence with multiple authorities is required. This is a time consuming process hence no specific time limit can be assigned. Additionally there cannot be any thumb rule as to what amounts to inordinate delay and the same depends upon the facts of the case. Respectively it is the duty of the executive to expedite every matter. The apex court has taken judicial notice that the executive used to take average time of four years to deicide mercy petitions between 1980- 1988, the same was reduced to five months between 1988-1997 and again increased to number of years post 1997.

In the case of Nirbhaya, filing of mercy petitions under Article 72 and 161 of Constitution and filing of petitions u/S 380 of Cr.P.C which is a special right of appeal in certain cases; inter alia were specifically exploited. This led to the public and media outcry for injustice being done owing to undue and unexplained delay in the execution of death sentence caused as a result of delay in the judicial process and decisions regarding mercy petitions of the convicts. Exploitation/ misuse of the provision or right cannot be a ground to annul the law or right. It should be subjected to amendments considering merits and its purview should be restricted to avoid any misuse.

Conclusion:

Justice is an abstract, broad and subjective connotation that when construed appropriately, encompasses power to shape and nurture a healthy civilized society. The right of the victim to seek justice ends, when the judicial process ends by awarding appropriate punishment to the convict. The right to file a mercy petition constitutes to be a part of justice and starts only after the exhaustion of all judicial processes and remedies. This right is completely exclusive from the right of the victim to seek justice. Therefore it cannot be construed that the commutation of the sentence is a failure to execute the sentence; and mere commutation does not nullify the purpose of the punishment. Rather this provision persuades to promote reforms in the behavior of the convicts. Provision of Mercy petition is a boon for all the convicts; who are not hardened criminals and may have committed an act out of necessity or with or without mens rea or in an act of self- defense etc, because it gives them an opportunity to restart their lives outside prison. Further to meet the ends of justice; by virtue of any injustice inflicted in exercise of the power, remedy is given to aggrieved under the limited judicial review available or by filing a writ petition under article 32 and 226 of Constitution of India. The prolonged process of exercise of executive power primarily aims to achieve public welfare although it causes a delay in execution of sentence. Therefore the exercise of executive clemency power is an act of grace and humanity which paves a way for a just society and protects fundamental rights and the core values enshrined in the Constitution.

 

Nachiket Kulkarni
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2nd Year BALLB student at ILS Law College, Pune

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