Adding another twist to the Nirbhaya episode, the Supreme Court has agreed to hear the Centre's appeal challenging the Delhi High Court's verdict, which has dismissed the Centre’s plea against stay on the execution of the death row convicts.

The Centre has appraised the court that, convicts in the case are yet to be executed, despite the fact that their review petitions have been dismissed and curative petitions and mercy pleas of three of them have been rejected.

The Delhi High Court had on last Wednesday directed that, the four convicts were to be executed together and not separately; however, it had set a week's deadline for them to avail the remaining remedies. It had further clarified that if the convicts chose not to make any type of petition within seven days from the date of the order, in that case the institutions/ authorities concerned would deal with the matter, as per the law, without further delay.

But it had faulted the authorities concerned for not taking steps in issuance of death warrants after the appeals of the convicts were rejected by the Supreme Court way back in 2017. The Centre has stated in the petition before the apex court that, the convicts can be hanged separately as one of them namely, Mukesh has exhausted all his remedies, including the mercy plea.

It is important to understand the intricacies of the whole exercise of presentation of mercy petition, its grant or rejection. The power of the President to grant pardons, to suspend, remit or commute sentences in certain cases is provided under Article 72 of the Constitution. As per this constitutional provision, the sole authority to grant mercy petition in criminal cases is the President of India, but his decision shall be subject to the aid and advice of the Council of Ministers. Besides, under Article 161 of the Constitution, the Governor has the power to grant pardons, to suspend or remit or commute sentences of any person convicted of any offence against any law relating to matter to which the executive power of the State extends. In Maru Ram v. Union of India, the apex court has held that, the powers under Articles 72 and 161 of the Constitution of India can be exercised by the Central and State Governments, not by the President and Governor on their own. So much so that, the advice of the appropriate Government binds the Head of the State. This was further reiterated by the apex court in the case of Dhana v. State of West Bengal.

In Kehar Singh and Anr. v. Union of India, the Supreme Court has held, “It is appropriate that in the matter of life and personal liberty another degree of protection should be extended by entrusting power further to some higher authority to consider the option of commutation. The power so entrusted is a power belonging to the people and lies with the highest dignitary of the State.”

It further added that, "The power to pardon is a part of the constitutional scheme and it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context.”

But such superior powers are also subject to judicial review and the convicts in Nirbhaya case have also resorted to such legal apparatus. The application of Judicial review over exercise of powers under Articles 72 and 161 of the Constitution are subject to certain limitations and have been well defined in Maru Ram v Union of India. It has been observed therein, that there cannot be an arbitrary or mala fide exercise of any public power including constitutional power. The constitution bench in this case emphasised that the “power being of the greatest moment, cannot be a law unto itself but it must be informed by the finer canons of constitutionalism.” It was further held, the court shall keep in mind while exercising judicial review that, where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter. The court remarked, “Higher the power, more cautious would be its exercise.”

Also in Epuru Sudhakar & Anr. v. Govt. of AP & Ors., the apex court held 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. In, another interesting decision of 2014, the apex court has held in Shatrughnan Chauhan & Anr. v. UoI,. that the condemned prisoner's death sentence can be commuted to life imprisonment if there is inordinate delay in deciding the mercy plea.

The prescription of law as regards the various options of legal remedies available to the convicts, are a set of well meaning constitutional and legal provisions and judicial innovations which clearly intend to protect the rights of the convicts against the slightest contingency of injustice, be it owing to procedural lapses, or fault of any of the legal/ judicial or executive authority. But it becomes fatal to the cause of justice, when the convicts and their lawyers exploit the humane face of law by adopting dilatory tactics as evident in the Nirbhaya case. While the proactive role of the State is indispensable in following up with such sensitive cases, it also becomes expedient that we embark upon a legal system that puts an end to the monopolistic regime, prevalent as regards the time of approaching the courts with review and curative petitions and filing of mercy petitions and their disposal. It is meant to say that, such petitions should be subjected to strict law of limitation, otherwise it shall not be too long, when public sentiments shall mount on the authorities to adhere to extra-judicial killings like in the Hyderabad veterinarian’s rape and murder case. Besides, there is every fear that, loss of public faith in the outcome of judicial processes shall result in setting up of Kanagaroo courts and promotion of mob lynching. Therefore, ‘We the people’ (and our manifestations as the legislature, executive and judiciary) should now seriously think about it.https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif

 (The writer is a lawyer and can be reached at sjyotiranajn3@gmail.com)