Shatrughan Chauhan & Anrs Vr U.O.I. & Ors. (Mercy Petition)

In the above noted matter tagged with 14 other writ petitions, a three judge bench of hon’ble Supreme Courrt of India headed by Mr. P. Sathasivam had an opportunity to look whether it will be in violation of Article 21, amongst other provisions, to execute the levied death sentence on the accused notwithstanding the existence of supervening circumstances like – Delay, Insanity, Solitary Confinement, Judgments declared per incuriam, Procedural Lapses, etc. and if yes can there be judicial interference to protect right of death row convict.

 

After hearing the counsels and going through number of precedents, Supreme Court held that it is well established that exercising of power under Article 72/161 by the President or the Governor is a constitutional obligation and not a mere prerogative. It opined that considering the high status of office of President / Governor, the Constitutional framers did not stipulate any outer time limit for disposing the mercy petitions under the said Articles, which means they should be decided within reasonable time. However, when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it opens the door for judicial interference to consider the prevailing circumstances. Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive, hence the same must be fulfilled with due care and diligence.

It further held that in India, every person even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, when judiciary interferes in such matters, it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.

In view of the disparities in implementing the already existing laws, hon’ble Supreme Court has also framed following guidelines for safeguarding the interest of the death row convicts.

1. Solitary Confinement: Solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. 
2. Legal Aid: Legal Aid for accessing judicial remedies is fundamental right under Article 21 and should be available to every convict till last breath even after rejection of mercy petition. Accordingly, Superintendent of Jails should intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts. 
3. Procedure in placing the mercy petition before the President: As and when any such 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 once in one stroke fixing a time limit for the authorities for forwarding the same to the Ministry of Home Affairs. After getting all the details, it is for the Ministry of Home Affairs to send the recommendation/their views to the President within a reasonable and rational time. 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. 
4. Communication of Rejection of 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. 
5. Communication of Rejection of the Mercy Petition by the President: All States should inform the prisoner and their family members of the rejection of the mercy petition by the President. Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing. 
6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor. 
7. Minimum 14 days notice for execution: It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons:-
   
   (a)  It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.
   (b)  It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail 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 mercy petition in time.
8. Mental Health Evaluation: It has been seen that 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. 
9. Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to stop an execution on account of the convict’s physical or mental ill health. It is, therefore, necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. 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. 
10. Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc. These documents are must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary pre-requisite to the accessing of these rights, it is necessary that 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. 
11. Final Meeting between Prisoner and his Family: Prison authorities must facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution. 
12. Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem to be conducted on death convicts after the execution, but the same should be made compulsory.