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Mercy jurisprudence: Constitution of India, 1950Articles 72/161 - Commutation of death sentence to life imprisonment - Effect of supervening circumstances - Held: Undue long delay in execution of sentence of death entitle the condemned prisoner to approach Supreme Court u/Article 32 - However, Supreme Court will only examine the circumstances surrounding the delay that has occurred and those that have ensued after sentence was finally confirmed by the judicial process - Supreme Court would not reopen the conclusion already reached but may consider the question of inordinate delay - Delay caused by circumstances beyond the prisoners' control mandates commutation of death sentence - Unexplained delay is a ground for commutation of death sentence into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under TADA - The only aspect the courts have to satisfy is that the delay was unreasonable and unexplained or inordinate at the hands of the executive - Insanity is also one of the supervening circumstances that warrant for commutation of death sentence - In the instant writ petitions, in the light of principles and facts of each case, the death sentence of all the petitioners is commuted into imprisonment for life - Code of Criminal Procedure, ยท1973 - Prisons Act, 1894.Articles 72/161 - Nature of power guaranteed under - Held: The power vested in the President u/Article 72 and the Governor u/Article 161 is a Constitutional duty - It is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the people in the highest authority - The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it - The said power is to be exercised on the aid and advice of the Council of Ministers - Also, Articles 72/161 of the Constitution entail remedy to all the convicts and is not limited to only death sentence cases.Articles 72/161 - Limited Judicial Review of the executive orders u/Article 72/161 - Held: Executive orders u/Articles 72/161 should be subject to limited judicial review based on the rationale that the power under Articles 72/161 is per se above judicial review, however, the manner of exercise of power is certainly subject to judicial review - Administrative law.Articles 72/161 - Processing the mercy petition - Procedure adopted u/Articles 72/161- Discussed.Articles 72/161 - Mercy petition - Limitation period for adjudication - Held: After the completion of the judicial process, if the convict files a mercy petition to the Governor/President, it is incumbent on the authorities to dispose of the same expeditiously - Though no time limit can be fixed for the Governor and the President, it is the duty of the executive to expedite the matter at every stage, viz., calling for the records, orders and documents filed in the court, preparation of the note for approval of the Minister concerned, and the ultimate decision of the constitutional authorities - Limitation.Articles 72/161 - Mercy petition - Procedural Lapses - Held: Ministry of Home Affairs, Government of India has detailed procedure regarding handling of petitions for mercy in death sentence cases - The Rules make it clear that at every stage the matter has to be expedited and there cannot be any delay at the instance of the officers, particularly, the Superintendent of Jail, in view of the language used therein as "at once" - Apart from these Rules regarding presentation of mercy petitions and disposal thereof, necessary instructions have been issued for preparation of note to be approved by the Home Minister and for passing appropriate orders by the President of India .Article 21 - Right to life - Rights of accused vis-a-vis right of victim - Held: While Article 21 is the paramount principle on which rights of the convicts are based, it must be considered along with the rights of the victims or the deceased's family as also societal consideration since these elements form part of the sentencing process as well.Article 32 - Writ petition by death convict asserting violation of Article 21 on account of undue, unreasonable and prolonged delay in disposal of his mercy petition - Held: When Article 21 is violated, it is not a question of judicial review but of protection of fundamental rights and courts give substantial relief not merely procedural protection - The question of violation of Article 21, its effects and the appropriate relief is the domain of Supreme Court - There is no question of remanding the matter for consideration because Supreme Court is the custodian and enforcer of fundamental rights and the final interpreter of the Constitution - Further, Article 21 is the paramount principle on which rights of the convict are based, this must be considered along with the rights of the victims or the deceased's family as also societal consideration.Guidelines: Mercy petitions - Guidelines for effective governing of the procedure of filing mercy petitions and for the cause of the death convicts - Framed.Code of Criminal Procedure, 1973: s.354(5) - Death sentence - Execution by hanging - Held: The method of hanging prescribed by s.354(5) is not violative of the guaranteed right u/ Article 21 of the Constitution on the basis of scientific evidence and opinions of eminent medical persons which assured that hanging is the least painful way of ending the life.Prison Act, 1894:s.30(2) - Solitary confinement- In case of prisoner under sentence of death - Held: Solitary confinement, even if mollified and modified marginally, is not sanctioned by s.30 of the Act for prisoners 'under sentence of death' - The crucial holding u/s.30(2) is that a person is not 'under sentence of death', even if the Sessions Court has sentenced him to death subject to confirmation by the High Court - He is not 'under sentence of death' even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending - Even if Supreme Court has awarded capital sentence, s.30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of - Thus, only after rejection of mercy petition by the Governor and the President, and on further application, if there is no stay of execution by the authorities, the person is under sentence of death - During that interregnum, he attracts the custodial segregation specified in s.30(2), subject to the ameliorative meaning assigned to the provision - To be 'under sentence of death' means 'to be under a finally executable death sentence'. |
