A MUCH NEEDED REGULATION IN MERCY PETITION

By- Gaargi Tomar

Introduction

Mercy Petition is the pathway through which an innocent person tries to get justice if he is being punished due to miscarriage of justice or in cases of doubtful conviction. Also, it is to be noted that mercy petition is different from review petition and curative petition as review petition can be defined as the binding decision of the Supreme Court or High Court which can be reviewed in a review petition and petition can be filed by the parties aggrieved by the decision of Supreme Court. Moreover, such a petition can be filed within 30 days of the pronouncement of judgment or order.

Furthermore, if a review petition is dismissed by the Supreme Court it may be considered as a Curative Petition.

The perception about the Curative Petition was progressed in the revolutionary case of Rupa Ashok Hurra v. Ashok Hurra and Anr.,[1].

The question in the subject in this event was whether after the discharge of the review petition whether an aggrieved person has the authority to any relief i.e. against the judgment of the Supreme Court can any relief be sought?

Mercy Petition is filed in cases where a person has lost all his rights. Being the end alternative, a person can file for Mercy Petition in front of the President. This right is available under Article 72 of the Constitution. Not only can the petition be filed in front of a President but can also be filed to a Governor of the state as under Article 161.

The Concept of mercy petition is being followed in U.S.A, U.K, Canada, India, etc. The whole statue is silent on the topic of definite procedures to be followed for the filing of Mercy Petition. Rules and guidelines for the disposal of the Mercy Petition are effective and it has a time limitation. Many think that due to all these loopholes, it is considered a violation of article 14 and 21 of the Constitution.

Basic Philosophy behind This

It exists to afford the relief from undue harshness or evident mistake in the operation and in the enforcement of criminal law. This provision adds a human touch to the judicial system by conferring powers to grant pardons or show mercy to those who have been awarded death sentence.

It has been recognized and acknowledged that a prolonged delay in executing the death sentence makes the punishment inhuman and degrades natural justice.

Current Framework of the Petition

Article 72 and 161 of the Indian Constitution empowers the president and governor to exercise the pardoning powers respectively.

From the above two Articles, it is clear that these provisions are available only in a condition when such persons are “convicted off an offence” and not before or without such conviction. It cannot also be applied to those conditions when the appeal is pending against the conviction.

In Shamsher Singh & Anr. v. State of Punjab[2] the Apex court laid down the principle authority that whenever an individual has sentenced a death penalty he has the license to present the Mercy Petition before the Hon’ble President.

Process for Making Petition

Though there is no statutory or written procedure for dealing with mercy petition, the petitions are received by the president’s secretariat on behalf of the president, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.

The petition can be filed by the convicted person within 7 days of passing of the order. The convicted person needs to be a person who is under the death verdict. The advantages of the petition are discussed by the Home Ministry with the State Government. After the discussion, the petition is again sent back to the President.

Need for Standard Procedure

Presently there are no rules that bind the government or the President for granting, accepting, or refusing the mercy petition.

In the present scenario of granting pardon, granting relief to one person on a particular ground does not mean granting the same to another. As in, R. Govindasamy[3] and Ravji case. Both the accused killed five persons and were convicted on circumstantial evidence.  

In the R. Govindasamy case, the sentence of death was converted into imprisonment for life but in the other case which is the Ravji case, no relief was given.

Article 21 prohibits the deprivation of the right to life and right to personal liberty, except according to a procedure established by law. The court in Maneka Gandhi v. Union of India[4] elucidated that the “fair procedure” is the demand of Article 21. No process indicates the option of arbitrary exercise of power. Lack of procedure in dealing with mercy petitions stands in contravention to principles under Article 21.

Simultaneously under Article 14, in State of West Bengal v. Anwar Ali Sarkar[5], the Court held the law to be invalid on the ground that the usage of vague expression, like ‘Speedier Trial’. The possibility of arbitrariness and discrimination in the present framework, therefore, stands as unconstitutional.

Recourse in Judicial Review

The jurisprudence has taken a new way and moved way ahead from the time of the Supreme Court’s RangaBilla case[6] where the Supreme Court had dismissed the petition against the arbitrariness and it was observed that the term “Pardon” indicates that it is fully a discretionary remedy and its denial is not to be reasoned.

The pardon was seen as an act of grace that was not to be claimed. In Swaran Singh v. State of U.P[7], the SC held that when power of cancellation has been exercised in contempt of the “finer cannons of constitutionalism”, such directive cannot get the approval of the law and in such cases, “the judicial hand must be stretched to it”

Present Scenario

The mercy petition has been rejected in many cases. One of the examples is Nirbhaya’s Case[8] where the petition filed by the accused was rejected and also in many other cases such as Yakub Memon. All these case shows that getting a mercy petition is not so easy. It becomes very selective.

Under a landmark judgment in 2014, the SC stated that a convict could not be executed for 14 days after the mercy petition had been rejected. The 14 days’ notice for execution acts as a deadline in order to prepare the prisoners for execution, prepare his will, etc.

Conclusion

The error of Judiciary is corrected by the executive and it has eliminated the effect of conviction without addressing the defendant guilty or innocent. Mercy Petition may prove to be a boon as to who had wrongly been convicted and any miscarriage of justice had happened and also it can act as bane. The reasons are lack of defined procedure and proper guidelines and its timely disposition.

Judicial Review mechanism is also rendered redundant. This is because it barley add to the concern of convicts and victims.

These alterations will eliminate the possibility of arbitrariness in exercising discretion and also ensures that the petition endures beyond a certain time.


[1]Rupa Ashok Hurra v. Ashok Hurra and Anr,(2002) 4 SCC 388: AIR 2002 SC 1771.

[2]Shamsher Singh & Anr. v. State of Punjab, AIR1974SC2192, (1974)2SCC831.

[3]R. Govindasamy (Died) and Ors. v. KasthuriAmmal And Ors., (1998) 2 MLJ 291.

[4]Maneka Gandhi v. Union Of India, 1978 AIR 597, 1978 SCR (2) 621.

[5]The State Of West Bengal v. Anwar All Sarkar, 1952 AIR 75, 1952 SCR 284.

[6]State v. Jasbir Singh @ Billa And Kuljeet, 17 (1980) DLT 404, ILR 1979 Delhi 571.

[7]Swaran Singh v. State of U.P. & Ors on 5 March, 1998.

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