"It is not a mere prerogative for the President and his decision will be subject to judicial review"

Exercising of power under Article 72/161 of the Constitution to consider and dispose of mercy petitions of convicts by the President or the Governor is a constitutional obligation and not a mere prerogative and such a decision would be subject to judicial review, the Supreme Court held on Tuesday.

A Bench of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shivakirti Singh, allowing writ petitions of 15 death row convicts, said: “Considering the high status of office, the constitutional framers did not stipulate any outer time limit for disposing of mercy petitions under the said Articles, which means it should be decided within reasonable time. However, when the delay caused in disposing of mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this court to step in and consider this aspect. Right to seek mercy under Article 72/161 is a constitutional right and [it is] not at the discretion or whims of the executive.”

Writing the judgment, the Chief Justice said: “Every constitutional duty must be fulfilled with due care and diligence; otherwise, judicial interference is the command of the Constitution for upholding its values. It is clear that after the completion of the judicial process, if the convict files a mercy petition to the Governor/the 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…”

Laying down guidelines, the Bench deprecated the practice of keeping death row convicts in solitary confinement and said such a practice, prior to rejection of the mercy petition by the President, was unconstitutional.

It said: “There is no provision in any of the prison manuals for providing legal aid, for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected. Since this court has held that Article 21 rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre, apart from intimating the convicts.”

The Bench said: “As and when any such mercy petition is received or communicated by the State government after the rejection by the Governor, necessary materials such as police records, judgment of the trial court, the High Court and the Supreme Court and all other connected documents should be called at one stroke, fixing a time limit for the authorities to forward the same to the Ministry of Home Affairs. Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required materials for early decision.”

The Bench pointed out that “no prison manual has any provision for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since the convict has a constitutional right under Article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available. Similarly all the States should inform the prisoner and their family members of the rejection of the mercy petition by the President.”

Obligation

The Bench said that giving 14-day notice for execution “allows the prisoner to prepare himself mentally for execution, to make his peace with God, prepare his will and settle other earthly affairs. It allows the prisoner to have a last and final meeting with his family members. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail themselves of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families. It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of the mercy petition in time.”

The Bench said there must be a regular mental health evaluation of prisoners as “in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need. If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a medical board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action.”

The Bench said: “Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc. Since the availability of these documents is a pre-requisite for the accessing of these rights, it is necessary that the copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts. While some prison manuals provide for a final meeting between a condemned prisoner and his family immediately prior to execution, many manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities. It is therefore, necessary for prison authorities to facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.”

The Bench said although “none of the jail manuals provide for compulsory post mortem on death convicts after the execution, we think in the light of the repeated arguments by the petitioners herein asserting that there is dearth of experienced hangman in the country, the same must be made obligatory. By making post mortem obligatory, the cause of the death of the convict can be found out, which will reveal whether the person died as a result of the dislocation of the cervical vertebrate or by strangulation which results on account of too long a drop.”

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