Why in News?

• The Supreme Court recently invoked its extraordinary powers to do complete justice under Article 142 of the Constitution and ordered the release of A.G. Perarivalan in former Prime Minister Rajiv Gandhi assassination case.

What is Article 142?

• Article 142 “provide(s) a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case.
• Article 142(1) states that “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe”.

Mercy petition in death sentence cases:

• A mercy petition is the last resort available to a convict having death sentence after all legal and judicial remedies like review and curative petitions are exhausted.
• For seeking mercy petition, the death sentence by a trial court must be confirmed by the High Court. Then the convict has an option to appeal to the Supreme Court.
• If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relative can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (161).

Grounds upon pardon can be sought:

• In a mercy petition, the person concerned is required to state the grounds upon pardon is sought.
• These grounds may not be worth considering from a legal point of view.
• But the grounds such as being the only bread earner of the family, the physical condition of the convict, age or the court committing a mistake or error inadvertently have value while consideration by the President.
• Supreme Court in the Kehar Singh v Union of India 1988 case held that the grant of pardon by the President is an act of grace and cannot be claimed as a matter of right.

Constitutional Provisions:

• Article 72 of the Constitution provides that the President shall have the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence

• in all cases where the punishment or sentence is by a Court Martial;
• in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
• in all cases where the sentence is a sentence of death.

• Similarly, under Article 161 the Governor has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

Procedure for handling Mercy Petitions:

• There is no written procedure for dealing with mercy petitions.
• A convict under the sentence of death is allowed to make the petition within a period of seven days after the date on which the Superintendent of jail informs him about the dismissal of the appeal by the Supreme Court.
• 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 seeking the advice of the Cabinet.
• The Home Ministry in consultation with the concerned State Government discusses the merits of the petition and tenders its advice to the President, on behalf of the Council of Ministers.
• The President can return the recommendation only once for reconsideration. If no change is made, the President has to sign his assent.
• The Constitution doesn’t specify any time-limit within which a mercy petition has to be decided.

Need for a Standard Procedure while handling Mercy Petition:

• There is no guideline or written procedure that the government or the President is bound by while processing mercy petitions.
• There is no opportunity of a personal hearing before the authorities and as a result, all relevant information may not be made available.
• Under the present scheme, there exists a possibility of two persons being treated differently despite having the same grounds, i.e. one person getting relief and another being denied for cases of similar nature.
• No prescribed procedure indicates the possibility of arbitrary exercise of power and consequent discrimination. This is in contravention to Articles 21 and 14 of the Constitution.
• In the absence of any standard procedure, there is no specific time-limit to decide mercy petitions.
• There are instances of mercy petitions lying undecided with the President for over a decade.
• In some cases, the convicts were able to take advantage of the delay and get their death sentences remitted on this ground.

International Standards:

• International Convention on Civil and Political Rights (ICCPR), of which India is a party to, has provisions against torturous, cruel, inhuman and degrading treatment or punishment.
• Inordinate and unreasonable delay in execution of death sentence amounts to torture as expounded by the Supreme Court in the Shatrughan Chauhan vs Union of India case.
• The ICCPR also establishes the right to life as an inherent, inalienable right that cannot be taken away arbitrarily.
• Universal Declaration of Human Rights preserves equality of all persons before the law and equal protection of the law.
• Any discriminatory treatment due to lack of procedure or otherwise stands in violation of these international standards.

Mercy Plea vs Capital Punishment:

• Every civilized country recognizes the need for providing a pardoning power as an act of grace while many countries have started the debate on the utility of the death penalty itself. The Indian Constitution also recognizes the need for providing a final avenue of justice in the form of mercy petition.
• While each case is unique, there is a need for a prescribed procedure on handling mercy petitions to remove arbitrariness and to specify definitive grounds for considering relief. Specifying a time limit for disposing of mercy petitions is also needed to allay the apprehensions of both convicts and victims.
• As per law, if a convict is awarded death sentence, he has three options — review petition and curative petition before the Supreme Court and finally mercy petition before the President. In this case, a review of the rejection of the mercy petition was also filed before the Supreme Court.

Review Petition vs Curative Petition vs Mercy Petition: 

• Various legal remedies available in order of filing: review petition → curative petition → mercy petition.
• As per law, if a convict is awarded death sentence, he has three options – review petition and curative petition before the Supreme Court and finally mercy petition before the President.
• While the decisions of the lower courts can be reviewed under various articles of the Constitution, a provision for the apex court to review an order passed by them is much needed as a final measure of correcting judicial errors. However, various legal remedies available, including a review of the rejection of mercy petition, are now being used to effectively delay the implementation of the verdict.
• In this context, it is essential to arrive at a balance between speedy justice and following just and reasonable procedures. Certain aspects like specifying the time within which review and curative petitions are to be filed, prescribing procedures that avoid duplication of processes in case of multiple convicts facing death penalty must be addressed. Both rights – the rights of the accused and the rights of a victim to seek justice are sacrosanct.