The clemency procedure under Articles 72 (by the President) and 161 (by Governors) of the Constitution provides a ray of hope to condemned prisoners and their family members for commutation of death sentence into life imprisonment. The executive should step up and exercise its time-honoured tradition of clemency power one-way or the other within a reasonable time, the Supreme Court has held.
Commuting the death sentence of three death row convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, a three-judge Bench headed by Chief Justice P. Sathasivam said: “We are confident that the mercy petitions filed under Article 72/161 can be disposed of at a much faster pace than what is adopted now, if the due procedure prescribed by law is followed in verbatim.”
Writing the judgment, the CJI said: “The fact that no time limit is prescribed to the President/Governor for disposal of the mercy petition should compel the government to work in a more systematised manner to repose the confidence of the people in the institution of democracy.
Besides, it is definitely not a pleasure for this Court to interfere in the constitutional power vested under Article 72/161 of the Constitution and, therefore, we implore upon the government to render its advice to the President within a reasonable time so that the President is in a position to arrive at a decision at the earliest.”
The Bench reiterated that exorbitant delay in disposal of mercy petition renders the process of execution of death sentence arbitrary, whimsical and capricious and, therefore, inexecutable.
Furthermore, it said: “Such imprisonment, occasioned by inordinate delay in disposal of mercy petitions, is beyond the sentence accorded by the court and to that extent is extra-legal and excessive. Therefore, the apex constitutional authorities must exercise the power under Article 72/161 within the bounds of constitutional discipline and should dispose of the mercy petitions filed before them in an expeditious manner.”
The Bench said: “Delay makes the process of execution of death sentence unfair, unreasonable, arbitrary and capricious and thereby, violates procedural due process guaranteed under Article 21 of the Constitution and the dehumanising effect is presumed in such cases.
Prolonged delay in execution of death sentence, by itself, gives rise to mental suffering and agony which renders the subsequent execution of death sentence inhuman and barbaric.”
On the argument that the petitioners were under legal obligation to produce evidence of their sufferings and harm caused to them on account of prolonged delay, the Bench said: “It is unknown to law and will be misinterpretation of the ruling in Shatrughan Chauhan judgment. Such a prerequisite would render the fundamental rights guaranteed under the Constitution beyond the reach of death-row convicts and will make them nugatory and inaccessible for all intent and purposes.”