The Ministry of Home Affairs (MHA) recently moved the Supreme Court to frame guidelines to execute the death penalty of condemned prisoners within seven days of rejection of their mercy petitions.

Why government is seeking guidelines?

  • The move comes amid various pleas filed by convicts in the 2012 Nirbhaya gang-rape case that has delayed their hanging. 
  • The four convicts are on death row since 2013 after a trial court ruled against them. Multiple curative petitions and mercy pleas filed before the President of India have been rejected.
  • Shatrughan Singh Chauhan vs. Union of India, 2014: The MHA filed an application in the top court to seek appropriate clarification/modification and directions in the judgment that defined the procedure to be adopted in cases of prisoners on death row.

The Shatrughan case judgment laid down certain procedural guidelines for mercy petition. 

They are :

  1. As soon as a mercy petition is received, the Ministry of Home Affairs should place it along with court records and files before the President without delay.
  2. The condemned prisoner's death sentence can be commuted to life imprisonment under Article 32 and Article 21 if there is inordinate delay in deciding the mercy plea. 
  3. Rejection of mercy petition must be forthwith communicated to the prisoner and his family in writing.
  4. Death row convicts are entitled to a copy of the rejection of the mercy plea.
  5. Minimum 14 days interval should be there between the receipt of communication of rejection and the date of execution. This time gap will enable the prisoner to prepare mentally.
  6. The Superintendent of Jail has the obligation to ensure that the family members of the prisoner receive the communication of rejection in time.

Supreme Court guidelines in Kehar Singh case

The power to pardon rests on the advice tendered by the Executive to the President, who, subject to the provisions of Art. 74(1) of the Constitution, must act in accordance with such advice.

  • Accused-centric rules: As per ministry, the existing guidelines are accused-centric. This is because the present guidelines do not take into account an irreparable mental trauma, agony, upheaval, and derangement of the victims and their family members. 
  • The heinous crime convicts can’t use the garb of Article 21 in order to take the judicial process for a ride.

Changes the government sought:

  • Mercy plea within 7 days: It sought a direction that if the convict of death sentence wants to file a mercy petition, it would be mandatory to do so only within a period of seven days from the date of receipt of death warrant issued by the competent court.
  • Issue death warrant within 7 days: The competent courts, State governments, prison authorities in the country to issue death warrant of a convict within seven days of the rejection of his mercy petition and to execute the death sentence within seven days (irrespective of the stage of review petition/curative petition/mercy petition of his co-convicts).
  • Curative petition within stipulated time: It would be permissible for the death convicts to file a curative petition after the rejection of review petition only within a time to be stipulated by Hon’ble Court and not thereafter.

MHA submitted that while taking care of the rights of convicts, it is more important and need of the hour to lay down guidelines in the interest of the victims, their families and in the larger public interest.

Review, Curative and Mercy Petition

Article 137 in the Constitution Of India

Review of judgments or orders by the Supreme Court subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have the power to review any judgment pronounced or order made by it.

A curative petition is the last judicial resort available for redressal of grievances in court to a person whose review petition has been dismissed by the Supreme Court.

  • Though the Constitution explicitly speaks about the review power of the Supreme Court under Article 137, it is silent about 'curative power'.
  • It is meant to ensure there is no miscarriage of justice, and to prevent abuse of process. 
  • A curative petition is usually decided by judges in the chamber unless a specific request for an open-court hearing is allowed.

A party can take only two limited grounds in a curative petition- 

  1. One, he was not heard by the court before the adverse judgment was passed, and 
  2. Two, the judge was biased. 

A curative plea, which follows the dismissal of the review petition, is the last legal avenue open for convicts in the Supreme Court.

Rupa Ashok Hurra Vs. Ashok Hurra & another, 2002

According to the judgment, every curative petition is decided on the basis of principles laid down by the Supreme Court.


About ‘mercy petition’

  • Article 72 of the Indian Constitution deals with the power of President to grant pardons, to suspend, remit or commute sentences in certain cases. 
  • Under this article, President alone has the sole authority to grant mercy petition in criminal cases on the aid and advice of the council of ministers. 
  • Also, Article 161 of the Indian Constitution grants power to the Governor to grant pardons, to suspend or remit or commute sentences of any person convicted of any offense against any law relating to a matter to which the executive power of the State extends.

Judicial review of Mercy Power

  1. Maru Ram v Union of India: All public power, including constitutional power, should not be exercised arbitrarily or mala fide. 
  2. Epuru Sudhakar & Anr. vs. Govt. of A.P. & Ors.: The apex court said that it is well settled that the exercise or non-exercise of the pardon power by the President or Governor, as the case may be, is not immune from judicial review.

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