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

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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

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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

voted against the question of global moratorium on the death penalty. India restricts itself to

apply the provisions of UN resolutions on death penalty. Indian legislation has several

provisions that provide death penalty for some serious type of offences. During the 1980s the

Supreme Court sought to restrict the use of the death penalty by characterizing it as a

punishment reserved only for the “rarest of the rare” cases. This category is no where defined

in the constitution or any other legislative provision. It‟s all judicial creativity based on facts

and circumstances of the case and subjected to judicial mindset and judicial creativity. Here,

we have examined various case laws and tried to find the reasonability behind the category of

rarest of rare. In a case, for a crime, a person is awarded death sentence and for the same

offence in another case, accused is given life imprisonment, proving the theory of rarest of

rare as vague. It is subjected to arbitrary practices which infuses corruption in system.

Provisions of mercy petition by President and governor proves to be inconsistent with the

criteria of awarding death penalty. India is a land of customs, beliefs and superstitious

traditions. There exists a belief that God resides in every human being and there are ample

chances of transformation. But now we are facing such situations where expiratory theory

doesn‟t work. Retributive way of punishment is the only way to cure brutal acts against

humanity.2

4

Amnesty International is a worldwide movement of people working to promote

internationally recognized human rights. Amnesty International opposes the death penalty in

all cases, on grounds that it is the ultimate cruel, inhuman or degrading punishment and

violates the right to life. Under international human rights standards, people charged with

crimes punishable by death are entitled to the strictest observance of all fair trial guarantees

and to certain additional safeguards, such as the right to seek pardon or commutation of their

sentence.

In Zahira Habibullah Sheikh & Anr Vs. State Of Gujarat & Ors Appeal (crl.) 446-449 of

2004.The Supreme Court of India observed “each one has an inbuilt right to be dealt with

fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the

victim and to society. Fair trial obviously would mean a trial before an impartial judge, a fair

prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or

prejudice for or against the accused, the witness or the cause which is being tried, is

eliminated.”

The right to a fair trial is a basic human right. It is one of the universally applicable

principles. Fair trial is an integral part of Article 21 of the Constitution and rests on the basic

principle of presumption of innocence. The concept of fair trial is based on the basic ideology

that State and its agencies have the duty to bring the offenders before the law. In their battle

against crime and delinquency, State and its officers cannot on any account forsake the

decency of State behaviour and have recourse to extra-legal methods for the sake of detection

of crime and even criminals. For how can they insist on good behaviour from other when

their own behaviour is blameworthy, unjust and illegal? Therefore the procedure adopted by

the State must be just, fair and reasonable. The Indian courts have recognised that the primary

object of criminal procedure is to ensure a fair trial of accused persons. Human life should be

valued and a person accused of any offence should not be punished unless he has been given

a fair trial and his guilt has been proved in such trial.

5

LITERATURE REVIEW

1. To be in Mercy, signifies to be liable to punishment at the discretion of the judge. The

total or partial remission of a punishment to which a convict is subject. When the

whole punishment is remitted, it is called a pardon; when only a part of the

punishment is remitted, it is frequently a conditional pardon; or before sentence, it is

called clemency or Mercy.3

2. A pardon is an act of grace and therefore it can‟t be demanded as a matter of right.

The effect of pardon is that it not only removes the punishment but in the eye of law

place the offender in the same position as if he had never committed the offence. The

executive can exercise the pardoning power at any time either before legal

proceedings are taken or during their tendency or either before or after conviction.4

3. The capital punishment is not always followed by executions because of possibility of

commutation to life imprisonment. The number of people executed in India since

independence in 1947 is a matter of dispute. However, the Law Commission of India

report show that 1422 execution took place in 16 Indians states from 1953 to 1963

and predicted that the total number of executions since independence may be as high

as 3000 to 4300.5

4. In December 2007, India voted against a United Nations General Assembly resolution

calling for a moratorium on the death penalty.6

5. In November 2012, India again upheld its stance on capital punishment by voting

against UN general Assembly draft resolution seeking to ban death penalty.7

6. Under Article 21 of the constitution of India, No person can 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. Article 21 is called heart of Fundamental Rights because all other

Fundamental Rights depends upon it. Rights and duties are correlative. The

Fundamental Rights are intended to severe as a constant reminder to every citizen that

6

while the constitution specifically requires citizens to observe certain basic norms of

domestic behaviours.8

7. In recent years, the death penalty has been imposed under new Anti-terrorist

legislation for the people who involved in the terrorist activities. The Supreme Court

of India ruled that the death penalty should be imposed only in the “rarest of the rare

cases”. On 3 February 2013, in response to public outcry over a brutal gang rape in

Delhi, the Indian government passed legislation which applied the death penalty in the

case of rape that leads to death or leaves the victim in a persistent vegetative state.9

8. After the award of death sentence passed by a Session (trial) court, sentence must be

confirmed by a high court to make it final.10

9. Article 161 says that the governor of the state shall have the powers to grant pardons

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

sentence of any person convicted of any offence against the law relating to a matter to

which the executive power of the state extends.11

10. In a significant decision in Epuran Sudhakan v/s State of A.P., the Supreme Court has

held the governor can‟t exercise his pardoning power arbitrarily. In the instant case a

congress worker was awarded death sentence by the trial court for committing murder

of a Telegu Desam party worker. The high court of Andhra Pradesh had confirmed

the death sentence. The governor of the state granted him pardon.12

11. The Apex Court held that the exercise of the president‟s power under Article 72 will

be examined on the facts and circumstance of each case the court has relined the

Power of judicial review even on a matter which has been vested by the constitution

solely in executive.13

12. Chandrachud, C.J., said “A self-imposed rule should be followed by the executive

authorities vigorously, that every such petition shall be disposed of within a period of

three months from the date when it is received. Long delay in the disposal of these

petitions are a serious hurdle in the disposition of justice and indeed, such delay tend

to shake the confidence of people in very system of justice”14

7

13. But present scenario is going towards the way which was not intended by the makers

of the constitution at the time when the constitution of India was being drafted. In

today‟s era, there are hundreds of mercy petition which are pending. After the

42ndAamendment of the constitution,1976 Article 74(1) reads as “there shall be a

council of ministers with the prime minister at the head to aid and advise the president

who shall ,in the exercise of his functions, act in who shall in with such advice”15

14. Despite the language of the constitutional provisions clemency is exercise not by the

president but by the government. For all practical purposes, the decision on a mercy

petition is arrived at within the ministry of home affairs. A memorandum on the case

is prepared by junior officials in the ministry and on the basis of same a joint secretary

or an additional secretary recommends a decision to compute the death sentence or

reject the Mercy petition.16

15. On 6 may 2010, the trial court sentenced kasab to death for attacking Mumbai and

killing 166 peoples on 26 November 2008 along with nine Pakistan terrorist. He was

found guilty of 80 offences, including waging war against the nation which is

punishable by the death.17

16. The President on 5 November 2012. Kasab was hanged in the Yerwada central jail in

Pune. On 5 March 2012, a sessions Court in Chandigarh order the execution of

Balwant Singh Rajoana a terrorist from Babbar Khalsa, convicted for his involvement

in the assassination of Punjab Chief Minister Beant Singh. The sentence was carried

out on 31 March 2012 in Patiala central jail, but the centre stayed the execution due to

worldwide protest by Sikhs that the execution was unfair and amounted to Human

Rights violation. In June 2012 , it become known that Indian President Pratiba Patil

near the end of her five years terms President commuted the death sentenced of as

many as 35 convicts to life , including four on the same day 2 June , which created a

storm of protest.18

17. As on February 2013, there are 476 convicts on death row in India. States the

maximum number of prisoners on death row are U.P. (174), Karnataka (61),

Maharashtra (50) and Bihar (37).19

8

18. After going through all of the aspect of mercy petition, in our view a man murdering

and raping a minor girl, should he be granted mercy after committing rape of such

girl. A man murdering five of the infant daughters is in no civilized country be

forgivable.20

19. The Apex Court held that if there is mercy petition before Governor/president. It is

incumbent on the authorities to dispose of the same as early as possible.21

20. It is stated by the Hon‟ble Supreme Court that it is paradoxical that the merciless

killers seek mercy for themselves when they caught and punished and the court must

be conscious that it has to do justice in exact conformity with some obligatory law.

Basically law was made for the benefit of the victim and to compensate them. But in

the present scenario this very function of law is in the favour of merciless killers.

Hence in this paper our basic concern is whether the mercy should be shown to those

persons who themselves are merciless.22

21. The Law Commission of India in its “Report No.262: The Death Penalty” of

31.08.2015 recommended that “the death penalty be abolished for all crimes other

than terrorism related offences and waging war”. Even if the recommendations of the

Law Commission of India were to be implemented in Toto, death penalty shall still

remain in the statute books in India for offences related to terrorism and waging war,

and hence granting mercy to death row convicts will continue to haunt the President

of India.23

22. That there are no accurate records of the mercy petitions considered since India‟s

independence shows the callousness of the Government of India on the question of

life and death and the respect for human dignity. In 2013, the Government of India

informed the Supreme Court that over 300 mercy petitions were filed before the

President by convicts on death row between 1950 and 2009.24

23. The Government of India was obviously unaware that it had earlier informed the

Rajya Sabha, upper house of Indian Parliament, on 29.11.2006 that 1,261 mercy

petitions were disposed of by the President between 1965 and 2006 alone.25

9

24. The Ministry of Home Affairs has framed broad guidelines 16 for granting mercy to

death row convicts.26

25. The failure to ensure due care and diligence has resulted in wrongful executions

including of Ravji Rao and Surja Ram31 while Afzal Guru was denied the right to

challenge the rejection of his mercy petition by the President before the Courts unlike

others sentenced to death under the same terror offences.27

26. The Supreme Court in a number of judgments held that the President exercises his

powers with the aid and advice of the Council of Ministers as per Article 53 of the

Constitution.28

27. The Ministry of Home Affairs has issued instructions regarding procedure to be

followed by the States for dealing with petitions for mercy from or on behalf of

convicts under sentence of death and with appeals to the Supreme Court and

applications for special leave to appeal to that Court by such convicts.29

28. In Shatrughan Chauhan, The Supreme Court noted “Even here, though there are

instructions, we have come across that in certain cases the Department calls for those

records in piece-meal or one by one and in the same way, the forwarding Departments

are also not adhering to the procedure/instructions by sending all the required

materials at one stroke.” Further, the Supreme Court directed that it is the

responsibility of the Ministry of Home Affairs to send periodical reminders and

provide required materials for early decision in case of no response from the office of

the President pursuant to sending of recommendations.30

29. These circumstances were not given due consideration even though the same are

clearly covered under the existing guidelines of the MHA, suggesting that the

rejection of Guru‟s mercy petition and his subsequent execution was politically

motivated as alleged by many including recently by then Chief Minister of Jammu

and Kashmir.31

30. The Supreme Court subsequently in the Shatrughan Chauhan case ruled that “Since

the convict has a constitutional right under Article 72 to make a mercy petition to the

10

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.”32

31. The Punjab and Haryana High Court in its judgment on 21.04.2015, inter alia, held

that “non-placing of the material fact before the President of India, which in our

opinion make out the present case as a fit case where this court, in exercise of its

powers under Article 226 of the Constitution, may allow the writ petition as ordering

the execution of death sentence will be highly unjust and unreasonable, and violations

of the fundamental right of the condemned prisoner” and commuted the death

sentence on Dharam Pal to life imprisonment.33

32. The callousness of the Government of India on the question of life and death is

reflected from the loss of mercy petitions of four death convicts namely Krishna

Mochi, Nanhe Lal Mochi, Bir Kuer Paswan and Dharmendra Singh V. Dharu Singh

who were awarded death sentence for killing 35 persons at Bara village in Gaya

district of Bihar in 1992. The prison authorities claimed that they had forwarded the

mercy petitions to the President of India on 03.03.2003. However, the “list of Mercy

petition cases since 1981” received by the President of India as provided by the

Ministry of Home Affairs, Government of India vide letter dated 28.03.2013 to Asian

Centre for Human Rights does not show the names of the four convicts.34

33. Then Union Minister of State for Home Affairs, Mullappally Ramachandran while

replying before the Rajya Sabha on 12.02.2014 stated that “No specific guidelines can

be framed for examining the mercy petitions due to vast majority of different types of

cases and varied circumstances. However, the broad guidelines generally considered

while examining the mercy petitions in the Ministry of Home Affairs provide that

clemency may be justified on the following grounds”35

34. As per the report of the MWCD, the doctor, Vinod Kumar who supervised the post-

mortems of the children “indicated that it was intriguing to observe that the middle

part of all bodies (torsos) was missing…Such missing torsos give rise to a suspicion

that wrongful use of bodies for organ sale, etc could be possible. The surgical

precision with which the bodies were cut also pointed to this fact, body organs of

11

small children were also in demand as these were required for transplant for babies/

children.36

35. The Union Minister for Home did not agree with the recommendations and finally the

MHA recommended the President to reject the mercy petition of Gurmeet Singh. The

President rejected his mercy petition on 01.03.2013.37

36. B A Umesh challenged the impugned judgment of the High Court in the Supreme

Court. The Supreme Court upheld his death penalty on 02.01.2011 stating that the

case fell within the category of the rarest of rare cases.106 On 12.05.2013, President

Pranab Mukherjee rejected the mercy petition of B A Umesh.107 The review petition

of B A Umesh is currently pending for hearing in open court after a Five-Judge

Constitution Bench of the Supreme Court, in a majority judgment, decided that review

of death sentence cases will be heard in open court by a Bench of three judges.38

37. On 06.02.2014, ACHR filed a complaint with the NHRC seeking its intervention to

commute the death sentence of Hoiliram Bordoloi as his case is covered by the

Shatrughan Chauhan. On 25.02.2014, the NHRC issued notice to the MHA calling for

a report. The MHA replied on 04.04.2014. However, even before the NHRC could

conclude its proceedings, the MHA recommended rejection of mercy petition of

Holiram Bordoloi and the President rejected the mercy petition on 05.07.2014.39

38. On 28.01.2015, the Allahabad High Court while hearing a Public Interest Litigation

commuted the death sentence of Koli into life imprisonment considering solitary

confinement of the convict. 40

39. Extreme poverty which indicates inability to defend oneself has often been used to

grant mercy. In March 1998, the then President commuted the death sentences of S.

Chalapathi Rao and G. Vijayavardhana Rao found guilty in the torching of a bus in

Andhra Pradesh in 1993, which resulted in the death of 23 persons. The then President

K. R. Narayanan found a number of mitigating circumstances such as young age, no

previous criminal record, poor socio-economic background, etc sufficient to grant

clemency under the first ground.41

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40. The incumbent President Pranab Mukherjee also commuted the death sentence of two

death row convicts namely Tote Dewan V. Man Bahadur Dewan of Assam, convicted

for the murder of his wife, two minor sons and a neighbourhood woman in 2002 as

the crime had socio-economic basis.42

41. “Considering the nature and most gruesome and beastly act perpetrated by the

appellant, the appellant deserves no leniency. He had committed premeditated rape

on a helpless child aged about six years and he had gone to the extent of strangulating

her to death.”43

42. List of Mercy Petition cases Since 1981 as Provided by The Ministry of home affairs

on 28.03.2015.44

43. Anyone sentenced to death shall have the right to appeal to a court of higher

jurisdiction, and steps should be taken to ensure that such appeals shall become

mandatory.45

44. Human Rights means “The rights relating to life, liberty, equality and dignity of the

individual guaranteed by the Constitution or embodied in the International Covenants

and enforceable by courts in India”46

45. “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”47

46. International Court of Justice stays Kulbhushan Jadhav hanging: Kulbhushan Jadhav's

death sentence triggered a sharp reaction from India which said that if he was

executed, it would be “premeditated murder”48

47. The Impact and Importance of International Human Rights Standards. In this volume

is the influence of, and reaction to, the development of international norms to the

pressures to abolish capital punishment altogether and to protect the right of those

facing the death penalty where it is still enforced.49

13

48. The Supreme Court of India observed “each one has an inbuilt right to be dealt with

fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is

to the victim and to society. Fair trial obviously would mean a trial before an impartial

judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in

which bias or prejudice for or against the accused, the witness or the cause which is

being tried, is eliminated.”50

49. The apex court observed that if fair trial envisaged under the Code is not imparted

to the parties and court has reasons to believe that prosecuting agency or

prosecutor is not acting in the requisite manner the court can exercise its power

under section 311 of the Code or under section 165 of the Indian Evidence Act,

1872 to call in for the material witness and procure the relevant documents so as to

sub serve the cause of justice.51

50. The Supreme Court observed “every accused is presumed to be innocent unless his

guilt is proved. The presumption of innocence is a human right subject to the

statutory exceptions. The said principle forms the basis of criminal jurisprudence

in India.” 52

51. The Supreme Court observed “it is no doubt that wrongful acquittals are

undesirable and shake the confidence of the people in the judicial system, much

worse; however is the wrongful conviction of an innocent person. The

consequences of the conviction of an innocent person are far more serious and its

reverberations cannot be felt in a civilized society.” 53

52. The court observed that the question is not whether a bias has actually affected the

judgement. The real test is whether there exists a circumstance according to which

a litigant could reasonably apprehend that a bias attributable to a judicial officer

must have operated against him in the final decision of the case.54

53. The Supreme Court declared that speedy trial is an essential ingredient of

„reasonable just and fair‟ procedure guaranteed by article 21 and it is the

constitutional obligation of the state to set up such a procedure as would ensure

14

speedy trial to the accused. The state cannot avoid its constitutional obligation by

pleading financial or administrative inadequacy.55

54. The National Campaign for Abolition of Death Penalty in India has published the

following reports relating to the issue of death penalty in India:

1. The Status of Mercy Petitions in India.

2. Our Standards and Their Standards: India Vs Abolitionist Countries

3. India: Not safe for extradition of those facing death sentences?

4. The State of the Right to Life in India, August 2015

5. India: Death without Legal Sanction, June 2015

6. India: Death despite dissenting judgements, 02 June 2015

7. India: Death in the name of conscience, May 2015

8. Arbitrary on all Counts: Consideration of mercy pleas by President of

India, 10 December 2014

9. Death Reserved for the Poor, November 2014

10. Death penalty through self incrimination in India, October 2014

11. India: Death without the Right to Appeal, September 2014

12. Award of enhanced punishment of death by the Supreme Court, 26

September 2014

13. India: Death Penalty Has No Deterrence, August 2014

14. India: Death Penalty Statistics, June 2014

15. The Case for Abolition of death Penalty in India- ACHR‟s submission

to the Law Commission of India on Capital Punishment, May 2014

16. Mercy on Trial in India, 22 October 2013

17. The State of Death Penalty in India 2013, 14 February 2013

15

OBJECTIVES OF STUDY

The objectives of study are as follows:-

1. The proposed research work would examine the various judicial decisions pertaining

to Mercy Petition.

2. The proposed research work would examine the viability of existing law.

3. The proposed research work would suggest the new legal regime in the light of

Human Rights concerning death penalty.

4. To guide and identify specific actions required to be taken as Human Rights in the

light of Indian Constitutionality.

5. We have to find out the solutions how this pendency at the ministry level and in the

office of the President will be reduced.

6. To find out whether the power of pardon can be exercised for political consideration

by the President or Governor.

7. To know whether the pardoning power of President or Governor is a discretionary

power or private act of grace or they are bound to exercise this power in accordance

with the cardinal principle of law, in public goodness.

8. To know the fact that whether an opportunity of being heard is necessary to be given

to the applicant when the case is pleaded before the President or Governor.

9. To gain knowledge whether the opportunity to avail executive clemency before the

President or Governor is available on a routine basis to ordinary individuals or it is

rare and its beneficiaries are extraordinary.

10. To evolve uniform guiding principles so that the President exercise pardoning power

uniformly to impart justice and bring a balance with individual interest and the public

welfare.

16

HYPOTHESIS

Hypothesis related to the present study have been formulated:-

1. The exercise of pardoning power by the executives amounts to interference in judicial

function.

2. There exists no proper guidelines/procedure for the exercise of pardoning power

which may result in abuse of these powers by the executives.

3. There exists no rationale behind conferring the pardoning power to different

authorities under different enactments. If so whether a single uniform body in India is

required to regulate the exercise of this power.

4. Pardoning powers are necessary to protect the individuals from undue harshness in the

operation or enforcement of the criminal laws by the judiciary.

5. There is possibility of misuse of pardoning power by the ruling political party.

WORK PLAN AND RESEARCH METHODOLOGY

The purposive research is divided as:-

1. Empirical i.e. Non-doctrinal

2. Non-empirical i.e. Doctrinal

For the purpose of research problem researcher has selected doctrinal research methodology

as many things can only be studied in empirical conditions. Being a social issue the research

has got the status of socio legal research. Hence, my research work based on both methods

(Doctrinal and Empirical Methods) will hold the research in proper manner.

17

IMPACT AND UTILITY OF PROPOSED WORK

1. It would be effective to remove the arbitrariness of executive action.

2. It would increase the consideration in Mercy Petition for reducing of death penalty in

India.

3. It would be effective to explore the scope of judicial review and demarcate the limits

within which the court may exercise the power of judicial review.

4. Impact of this research would be to find out whether the Justice delivery system is

properly copped up to the needy and the poor persons.

CHAPTER SCHEME (PROVISIONAL)

Chapter 1- Introduction

Chapter 2- Mercy petition as a Human Rights Measure

Chapter 3- Mercy petition and International legal regime

Chapter 4- Mercy petition and National Laws

Chapter 5- Mercy petition and judicial decisions

Chapter 6- Conclusions and Suggestions

18

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of the United States. By John Bouvier. (1856). Retrieved April 2 2016

4. In re, Channugadu, AIR 1954 Mad. 911.

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Meetings, ANNEX VI. Retrieved on 30July 2013

7. General Assembly G/A/11331, Sixty Seventh, General Assembly plenary 60th

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8. Pandey, J.N., Constitutional Law of India, ed. 2011, P. 431.

9. “Notorious Attack Spurs India to Approved New Rape Laws”; New York Times; 3

Feb. 2013; Retrieved on 13/2/2014

10. Section 366, the code of Criminal procedure, 1973.

11. Article 161; Constitutional law of India.

12. Times of India, 5August, 2006

13. Kuljeet Singh v/s Lt. Governor of Delhi AIR 1982 SC 774

14. Sher Singh v/s State of Punjab AIR 1983 SC 361

15. Article 74; The Constitution of India

16. http:// www.lawyersclubindia.com/forum; retrieved on 13/2/2014.

17. http://capitalpunishmentinindia; retrieved on 13/2/2014.

18. „President Pratiba Patil goes on Mercy Overdrive‟, The Times of India; 23 June 2012

New Delhi

19. BBC.Co.UK.2012-12-13; Retrieved on 23/01/2014

20. Maganlal Barela‟s case: “Justice as a Game of Chance” The Hindu, 14/8/2013.

21. Shatrughan Chauhan v. UOI, 2014 (1) RCR (Cr.) 741 SC

22. Davinder Pal Singh Bhullar vs St. of NCT of Delhi, 2013 (2) RCR Cr. 647

23. Law Commission of India, Report No.262 on The Death Penalty, August 2015

available at http:// lawcommissionofindia.nic.in/reports/Report262.pdf

19

24. Pal Singh Bhullar vs State of N.C.T. of Delhi decided on 12.04.2013,

http://judis.nic.in/supremecourt/imgst.aspx.

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Minister of State in the Ministry of Home Affairs on 29.11.2006 at:

http://164.100.47.5/qsearch/QResult.aspx

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par2014-pdfs/rs-120214/2280.pdf

27. Law Commission of India Report No. 262 “The Death Penalty” August 2015

28. Article 53, the Indian Constitution,

29. http://court.mah.nic.in/courtweb/criminal/pdf/chapter18.pdf

30. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

31. „Afzal Guru was hanged for political reasons: Omar‟, The Hindu, 25 May 2015,

http://www.thehindu.com/news/national/afzal-guru-hanging-afzal-guru-was-

hangedfor-political-reasons-says-omar-abdullah/ article7241745.ece

32. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

33. Dharam Pal v. State Of Haryana available at http:// indiankanoon.org/doc

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684/4/5/2014

35. Rajya Sabha, unstarred question no.2280 on “Guidelines regarding clemency to death

row convict answered on the 12th February 2014 available at row convicts answered

12th http://mha1.nic.in/par2013/par2014-pdfs/rs-120214/2280.pdf

36. Report of the Committee Investigating into allegations of large scale sexual abuse,

rape and murder of children in Nithari village of NOIDA (UP), Ministry of Women

and Child Development Government of India Shastri Bhawan, New Delhi available at

http://wcd.nic.in/nitharireport.pdf

37. Statement on mercy petitions of the President‟s Secretariat dated 07.09.2015 available

at http:// rashtrapatisachivalaya.gov.in/pdf/mercy.pdf

38. The judgment was passed in Writ Petition (Criminal) No. 77 of 2014 with Writ

Petition (Criminal) No. 137 of 2010, Writ Petition (Criminal) No.52 of 2011, Writ

Petition (Criminal) No. 39 of 2013, Writ Petition (Criminal) No. 108 of 2014 and

Writ Petition (Criminal) No. 117 of 2014

39. Statement of Mercy petition cases by the President of India

http://rashtrapatisachivalaya.gov.in/pdfs/mercy.pdf

40. Peoples‟ Union of Democratic Rights v. Union of India, 2015 (2) ADJ 398

20

41. „Mercy guidelines‟, Frontline, Volume 26 - Issue 07, 28 March - 10 April 2009

http://www.frontline.in/static/html/fl2607/stories/20090410260703400.htm (Accessed

14.05.2015)

42. „First commutation of death sentence by Pranab‟, The Hindu, 03.12.2012,

http://www.thehindu.com/news/national/first-commutation-of-death-sentence-

bypranab/article4161249.ece (Accessed 15.05.2015) and See „Statement of Mercy

Petitions‟ as on 11.05.2015 available at: http://rashtrapatisachivalaya.gov.in/

pdf/mercy.pdf

43. Jumman Khan v. State of UP AIR 1991 SC 345

44. The Status of Mercy Petitions in India ,Published by: Asian Centre for Human Rights

(ACHR) C-3/441-Second Floor, Janakpuri, New Delhi 110058, INDIA

45. Safeguards guaranteeing protection of the rights of those facing the death penalty,

approved by Economic and Social Council resolution 1984/50 of 25 May 1984 and

available at http://www.ohchr.org/EN/ Professional Interest/Pages/DeathPenalty.aspx

46. Section 2(1) (d) of the Protection of Human Rights Act 1993

47. Article 1 of the Universal Declaration of Human Rights

48. http://indianexpress.com/article/india/india-moves-international-court-of-justice-

tostop-kulbhushan-jadhav-death-sentence-stay-pakistan-4648501/

49. Confronting Capital Punishment in Asia: Human Rights, Politics and Public

50. In Zahira Habibullah Sheikh & Anr vs. State of Gujarat & Ors Appeal (crl.) 446-449

of 2004.

51. Himanshu Singh Sabharwal vs State Of M.P. And Ors on 12 March, 2008.Transfer

Petition (crl.) 175 of 2007

52. State Of U.P vs Naresh And Ors on 8 March, 2011 CRIMINAL APPEAL NO.674 of

2006

53. Kali Ram vs State Of Himachal Pradesh on 24 September, 1973

54. Shyam Singh vs The State of Rajasthan And Anr. on 16 March, 1972, CriLJ 441,

1972 WLN 165

55. Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, ... on 9 March, 1979

Equivalent citations: 1979 AIR 1369, 1979 SCR (3) 532

21

Details of Candidate:-

1. Title of the Synopsis : MERCY PETITION Vis-a-Vis HUMAN

RIGHTS DISCOURSE: THE

CONSTITUTIONAL PERSPECTIVE IN

INDIA

2. Name of the Scholar : DINESH KUMAR SINGH

3. Subject/Faculty : Law/ Faculty of Law, Agra College Agra

4. Registration No. : 303/2017.6108

5. Name of the Supervisor : Dr. Rakesh Kumar

6. Designation : Associate Professor

7. Research Centre Name : Faculty of Law, Agra College Agra

8. Total No. of Pages : 21

9. Scanned Photograph :

10. Email Address : dr.dk@outlook.com

11. Phone Contact : 9258466587, 9258466580

12. Address : House Name – Sri Vansh Villa, House Number

KE/61 Techman City, Karmyogi Nagar, Near

Heritage Honda Car Showroom, NH-2, Mathura,

Pin Code 281006