Filing of more than one Mercy Petition is permissible both under Cr.P.C and Constitution ; State of TN to Constitution Bench [Summary of Arguments in Sriharan Day-7]

The arguments today (5th August 2015) were continued by the State of Tamil Nadu through Mr. Rakesh Dwivedi, Senior Advocate.Continuing on the second question referred to the constitution bench, Mr. Dwivedi argued to counter the argument of the Solicitor General that the power of mercy could not be exercised repeatedly. He submitted that the CrPC and the Constitution permitted filing of more than one mercy petition even though it may have previously been filed and decided. He contended that section 433-A itself contemplated a fresh exercise of the power of remission where a sentence of death was commutated to one of life imprisonment. He submitted that Kehar Singh’s case had laid down the law that the exercise of powers under Articles 72 and 161 could not be governed by judicial dicta. He further submitted that in the case of G Krishtha Goud v. State of Andhra Pradesh, it was held that the rejection of one clemency petition does not exhaust the power of the President and Governor. He argued that it would be open to exercise the powers under section 432 and 433 even after the exercise of powers under Article 72 and 161 of the Constitution. He argued that this was a fit case where circumstances had fundamentally changed as the LTTE was considerably weakened and its head who was named as an the main conspirator had been killed.Responding to the queries of the Bench on whether the practice of filing repeated mercy petitions and also petitions challenging its rejection needed to be checked, Mr. Dwivedi submitted that there appeared to be no material placed by the Union to show that this had caused any problems or delayed the execution of the death sentence. He submitted that in death sentence cases, even if some delay was caused, it should be accommodated as the condemned prisoner was clutching to life. He submitted that in such cases, the benefit of the doubt should go to the prisoner since the death sentence is irreversible. He pointed out that in case of death sentences, the Instructions issued by the Ministry of Home Affairs and several jail manuals only required that an automatic stay of execution only be granted after the first mercy petition had been sent and for all other subsequent petitions, an order of stay would have to be asked for from the courts or the executive. He submitted that if the concern was that the Supreme Court would be overburdened by cases of prisoners who were seeking to delay the date of execution, he said a change could be made in the Supreme Court Rules to limit the number of times petitions challenging decisions rejecting clemency could be filed. He submitted that the States were competent authorities to deal with clemency petitions at their own level by appropriately advising the Governor. He submitted that if the Union was in any way aggrieved, it was always open to them to amend both the CrPC as well as the Constitution as neither currently imposed a bar on the number of petitions which could be filed. When the Bench suggested that they could, in their judgment indicate that they would want to cap the number of times a clemency petition could be filed or challenged, he implored them to not do so as that would be interfering in the legislative domain. He submitted that in the present case, they are not dealing with any cases of death sentence as the prisoners who were sentenced to death have had their sentences commuted to life imprisonment and therefore these observations, if made, would be wholly out of place if made in this case.Mr. Dwivedi further submitted that it was highly improbable that if the power of remission was left to the State Government, it could be misused by the Governor. He relied on Article 167 of the Constitution which outlines the duties of the Chief Minister and the debates that took place on the Governor’s powers in the Constituent Assembly (Article 147 of Draft Constitution). He submitted that the Governor could not over-rule the Ministers but could only warn, suggest or advise the ministers on the course of action adopted or to be adopted. On a query by the court, however, he conceded that he was not aware of a case where the Governor had exercised the powers under Article 167 (c) of the Constitution to send a decision to grant or withhold remission by a Minister back to the Council of Ministers for reconsideration.While addressing arguments on question No. 6 referred to the constitution bench, Mr. Dwivedi submitted that it was not necessary for an application under 432(1) to be moved as it uses the term “anytime”. He further submitted that in the case ofMohinder Singh v. State of Punjab no application had been submitted and the State had initiated action suo moto. He submitted that the power under section 432(1) was the procedural portion and was a complete power in itself.On the issue of the power under section 432(2) he submitted that this power was discretionary and required an application to be filed as stated in the sub-section. He stated that...

Filing of more than one Mercy Petition is permissible both under Cr.P.C and Constitution ; State of TN to Constitution Bench [Summary of Arguments in Sriharan Day-7]

Nishant Gokhale

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