Mercy petitions an obligation not a prerogative

Bengaluru, July 22: Yakub Memon whose curative petition was rejected by the Supreme Court of India yesterday has opted for yet another recourse by moving the governor of Maharashtra seeking mercy. He sees one last ray of hope in filing this mercy petition before the Governor, legal experts say.

Yakub Memon whose date of hanging has been fixed for July 30th has exhausted all legal options. Normally in cases of death sentences, the word of the President of India is final. However the Supreme Court can interfere with the order of the President only if it finds that there was inordinate delay in deciding the mercy petition.

In this context here is an important judgment of the Supreme Court which deals with mercy petitions and also the rights of a death row convict. Disposing off a series of writ petitions filed by 15 death row convicts, the Supreme Court had in 2014 said that mercy petitions are a constitutional obligation and not a mere prerogative.

Mercy petitions to be decided in reasonable time:

The Supreme Court Bench comprising the then Chief Justice of India, P Sathasivam and Justices Ranjan Gogoi and Shivakirti Singh had said that 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. Such decisions will be subject to judicial review.

The Bench further stated that taking into consideration the high status of the office, the framers of the constitution did not stipulate any time frame or outer limit to dispose of a mercy petition. This means it should be decided within reasonable time. When the delay caused in disposing of mercy petitions is seen to be unreasonable and exorbitant, it is the duty of this court to step in and consider this aspect.

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, the Bench also stated.

Solitary confinement is unconstitutional:

The Bench also noted that keeping death row convicts in solitary confinement prior to rejection of the mercy petition by the President, was unconstitutional. 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.

The Bench also noted that 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 and legal aid should be provided to the convict at all stages.

When a 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.

14 day notice for hanging:

The Supreme Court said that there shall be a 14 day notice given for the execution. This would allow the prisoner to prepare himself mentally for execution, to make his peace with God, prepare his will and also settle other earthly affairs. It allows the prisoner to have a last and final meeting with his family members.

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. There should 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.

None of the jail manuals provide for compulsory post mortem on death convicts after the execution. The Bench however felt that it should be made obligatory. This would 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.

OneIndia News