REVISED SYNOPSIS - Dr. Bhimrao Ambedkar revised synopsis submitted to dr. b. r. ambedkar university

  • View
    0

  • Download
    0

Embed Size (px)

Text of REVISED SYNOPSIS - Dr. Bhimrao Ambedkar revised synopsis submitted to dr. b. r. ambedkar university

  • REGISTRATION NUMBER: 303/2017.6108

    MERCY PETITION Vis-a-Vis HUMAN RIGHT DISCOURSE:

    THE CONSTITUTIONAL PERSPECTIVE IN INDIA

    REVISED SYNOPSIS

    SUBMITTED TO

    Dr. B. R. AMBEDKAR UNIVERSITY

    AGRA

    FOR THE DEGREE OF

    DOCTOR OF PHILOSOPHY IN

    LAW

    FACULTY OF LAW

    BY

    DINESH KUMAR SINGH

    UNDER THE SUPERVISION OF

    Dr. RAKESH KUMAR

    AGRA LAW COLLEGE, AGRA

    2014-15

  • CERTIFICATE

    This is to certify that DINESH KUMAR SINGH is a research scholar in Law,

    REGISTRATION NUMBER: 303/2017.6108, session 2014-15, at Faculty of Law,

    Agra College, Agra (Dr. Bhimrao Ambedkar University, Agra, U.P.) He has prepared

    the Revised Synopsis on the topic titled “MERCY PETITION Vis-a-Vis HUMAN

    RIGHTS DISCOURSE: THE CONSTITUTIONAL PERSPECTIVE IN INDIA”

    as per suggestion laid by Research Degree Committee, under my supervision and

    guidance. This Ph.D. synopsis has embodied original work of the candidate and has

    not been submitted anywhere else for the award of any other Degree or Diploma in

    this or any other University or Institute.

    I have no objection to guide the candidate on the topic mentioned above.

    Head of Department Supervisor

    Dr. Piyush Tyagi Dr. Rakesh Kumar

    (Associate Professor) (Associate Professor)

    Faculty of Law, Agra College, Agra Faculty of Law, Agra College, Agra

    (Dr. B. R. Ambedkar University, Agra) (Dr. B. R. Ambedkar University, Agra)

  • DECLARATION

    I, DINESH KUMAR SINGH declare that the work embodied in this Ph.D.

    synopsis is my own bonafide work carried out by me under the supervision of

    Dr. RAKESH KUMAR (Assistant Professor), Faculty of Law, Agra College,

    Agra (Dr. Bhimrao Ambedkar University, Agra, U.P.) Session 2014-15. The

    content embodied in this Ph.D. synopsis has not been submitted previously for

    the award of any Degree or Diploma in this or any other University or Institute.

    I also declare that I have adhered to all principles of academic honesty and

    integrity and have not misrepresented or fabricated or falsified any idea in my

    synopsis where other ideas or words have been included; I have adequately

    cited and referenced the original sources.

    Date: 24-03-2018

    Place: Agra

    Candidate Signature

  • 1

    If we simply use the term “mercy” to refer to certain of the

    demands of justice (e.g., the demand for individuation),

    then mercy ceases to be an autonomous virtue and instead

    becomes part of … justice. It thus becomes obligatory,

    and all the talk about gifts, act of grace, supererogation,

    and compassion becomes quite beside the point. If, on the

    other hand, mercy is totally different from justice and

    actually requires (or permits) that justice sometimes be set

    aside, it then counsels injustice. In shorts, mercy is either a

    vice (injustice) or redundant part of justice.

    - Jeffrie G. Murphy

    The genesis of Mercy petition directly or indirectly lies in the very basic and spiritual right

    i.e. Right of life and personal liberty under the Article 21 of the Indian Constitution. The law

    is absolute senses implies that the person‟s right to life can only be taken away by a proper

    process of law. The need of filling Mercy petition is come in to the picture when the accused

    is under the award of death penalty. 1

    INTRODUCTION:

    The basic principle of natural justice is he who seeks equity must do equity. It means justice

    should be delivered to those who come to seek justice with clean hands. Generally mercy

    petition is the last option for condemned prisoners. In our constitutional scheme, the president

    has been conferred power under article 72 to grant pardon and to suspend, remit or commute

    sentences in certain cases, including in those matter where the sentence is death penalty. This

    power is independent of judiciary and “essential attribute of sovereign power”. 1 Under

    Article 72 and 161 under which the President or the governor, as the case may be, can grant

  • 2

    pardons, reprieves, respites or remission of punishment or suspend, remit or commute the

    sentence of any person convicted of any offences and as will be seen hereinafter, the

    President has exercised power under Article 72 in large number of cases for commutation of

    death sentence of death sentence in to life imprisonment except when the accused was found

    guilty of committing gruesome and/or socially abhorrent crime. The Constitution of India

    proclaims in Art. 21 that person shall be deprived of his life except according to procedure

    established by law. It implies that everyone has right to live freely and develop his life with

    maximum possible efforts and live with human dignity. But when anyone commits crime of

    such nature for which the punishment prescribed is death penalty and after the trial he found

    guilty of that offence and sentenced to death penalty, he cannot claim this right to life under

    Article 21 of the Constitution.

    The Supreme Court in Mithu Vs. State of Punjab 1983, AIR 473, 1983 SCR (2) 690 struck

    down section 303 of the Indian Penal Code, which provides for mandatory death punishment

    for offenders serving life sentences. The capital punishment is not always followed by

    executions, because of possibility of commutation to life imprisonment.

    The Supreme Court‟s January 21 order came in the case of Shatrughan Chauhan and Another

    Vs. Union of India and Others, 2014 (1) SCALE 437, The Supreme Court, in February 2014,

    asked the government to include delay as a criterion in deciding the mercy petition of a death

    row convict. The Court said that “the clemency procedure “provides a ray of hope” to the

    condemned prisoners and their family members for commutation of death sentence to life

    imprisonment. Therefore, the executive should step up and exercise its time-honoured

    tradition of clemency power guaranteed in the constitution one way or the other within a

    reasonable time.”

    All human beings are born free and equal in dignity and rights. They are endowed with

    reason and conscience and should act towards one another in a spirit of brotherhood.

    Everyone is entitled to all the rights and freedoms set forth in Universal Declaration of

    Human Rights Declaration (UDHR) without distinction of any kind, such as race, colour, sex,

    language, religion, political or other opinion, national or social origin, property, birth or other

    status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or

    international status of the country or territory to which a person belongs, whether it be

    independent, trust, non-self-governing or under any other limitation of sovereignty. Everyone

    http://blog.mylaw.net/delay-in-deciding-mercy-petitions-as-a-ground-for-commutation-did-the-judiciary-exceed-its-brief/Shatrughan%2520Chauhan%2520and%2520Another%2520v.%2520Union%2520of%2520India%2520and%2520Others http://blog.mylaw.net/delay-in-deciding-mercy-petitions-as-a-ground-for-commutation-did-the-judiciary-exceed-its-brief/Shatrughan%2520Chauhan%2520and%2520Another%2520v.%2520Union%2520of%2520India%2520and%2520Others http://blog.mylaw.net/delay-in-deciding-mercy-petitions-as-a-ground-for-commutation-did-the-judiciary-exceed-its-brief/Shatrughan%2520Chauhan%2520and%2520Another%2520v.%2520Union%2520of%2520India%2520and%2520Others

  • 3

    has the right to life, liberty and security of person. However, in Indian Criminal law &

    Constitutional law so many safeguards have been provided to eliminate any possibility of

    miscarriage of justice for example in case of death offence, The death sentence is awarded in

    rarest of rare cases only. But, in justice delivery system, there are also violations of Human

    Rights when the authority exercises its power at its discretion arbitrarily without observing

    the restrictions material situations etc. Mercy petition is to be taken as Human rights before

    the supreme authority either constitutional or otherwise as the case may be through the

    supreme law of the land. Hence, in the proposed thesis, Some measures are to be examined in

    the light of constitutionality historically and at present case to case scenario and what kind of

    actions could be taken or identified as a guidelines etc. while considering the rights of the

    victim(s) as well as accused(s) as a Rule of law in the disposed of Mercy Petitions. Death

    penalty is a debatable international topic and every country stands with different opinion in

    this context. It has been banned in various countries where as, it is regarded as panacea to the

    persistent threat to the society. United Nations prohibits death penalty in all of its forms

    declaring it as barbarous and inhuman. India is party to UN conventions but it has always

    vo