death-penalty-in-india

President Ram Nath Kovind rejected the mercy plea of death row convict in the 2012 Nirbhaya gang-rape case. Delhi court subsequently issued a fresh death warrant to hang all four convicts in Tihar jail on February 1.

Background:

  • The top court in its 2017 verdict had upheld the capital punishment awarded to them by the Delhi High Court and the trial court.
  • The supreme court had recently dismissed review petitions by all four and curative petition of one accused.
    • A curative petition is the last constitutional remedy available 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- 
    • One, he was not heard by the court before the adverse judgment was passed, and 
    • 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.
  • This was a case of a matrimonial discord where the question of the validity of a decree of divorce reached the SC after the woman withdrew the consent she had given to divorce by mutual consent.
  • The court ruled that a curative petition can be entertained if the petitioner establishes there was a violation of the principles of natural justice, and that he was not heard by the court before passing an order. 
  • It will also be admitted where a judge failed to disclose facts that raise the apprehension of bias.
  • The SC has held that curative petitions must be rare rather than regular, and be entertained with circumspection. 
  • A curative petition must be accompanied by a certification by a senior advocate, pointing out substantial grounds for entertaining it. 
  • It must be first circulated to a Bench of the three senior-most judges, and the judges who passed the concerned judgment, if available. 
  • Only when a majority of the judges conclude that the matter needs hearing should it be listed — as far as possible, before the same Bench.

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.

The Shatrughnan case judgment laid down certain procedural guidelines for mercy petition. They are :

  • 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.
  • In Shatrughan Chauhan & Anr. v. UoI case, SC held that 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. 
  • Rejection of mercy petition must be forthwith communicated to the prisoner and his family in writing.
  • Death row convicts are entitled to a copy of the rejection of the mercy plea.
  • 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.
  • 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 and Anr. v. Union of India

  • 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.
  • It is open to the President in the exercise of the power vested in him by Art. 72 of the Constitution to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court.
  • In doing so, the President does not amend or modify or supersede the judicial record. 
  • He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. 

Judicial review of Mercy Power

  • The limitations of judicial review over the exercise of powers under Articles 72 and 161 of the Constitution have been delineated in Maru Ram v Union of India by the Constitution Bench. It has been observed that all public power, including constitutional power, should not be exercised arbitrarily or mala fide. 
  • In Epuru Sudhakar & Anr. v. 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.
    • Remission of life sentence was granted by the Governor of UP in Swaran Singh v. the State of U.P. to the Minister of the State Legislature Assembly convicted for the offense of murder. 
    • The Supreme Court, in this case, quashed the Governor's order and said that if clemency power has been exercised in absolute disregard of the "finer cannons of constitutionalism", such an order cannot get the approval of the law and in such cases, the "judicial hand must be stretched"

About Death penalty:

The death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. In India, it is awarded for the most serious of crimes.

 
  • In the case of Jagmohan Singh v. State of U.P which was the first case dealing with the question of the constitutional validity of capital punishment in India, The SC upheld the constitutionality of the death penalty and held that deprivation of life is constitutionally permissible for being recognized as a permissible punishment by the drafters of our Constitution.
  • Bachan Singh vs the State of Punjab, the Court held that capital punishment will only be given in rarest of rare cases.

The process

  • Once the Sessions Court has awarded death sentence to a convict in a case, it must be confirmed by the High Court
  • Under the appellate jurisdiction of the supreme court, the matter can then be heard by the apex court. If it confirms/upholds the death sentence, the convict may file review and curative petitions to the Supreme Court.
  • If this also fails the accused has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. 

Detailed instructions regarding the procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the Supreme Court and applications for special leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs.

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