Delay in deciding on convicts’ mercy petitions: An unresolved malady

There is no prescribed time limit within which the Governor is bound to take a decision regarding mercy petitions. This does not imply that the Governor can put a mercy petition under Article 161 on the back burner for an inordinate period.

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AFTER a long 31 years of incarceration, A.G. Perarivalan, one of the seven convicts in the infamous Rajiv Gandhi assassination case of May 21, 1991, has been set free. This has been possible after the Supreme Court ordered his release in May by exercising its extraordinary powers under Article 142 of the Constitution.

The interesting aspect of this case was that the Tamil Nadu Governor unnecessarily delayed any decision on the mercy petition of Perarivalan despite a recommendation for awarding mercy from the State Cabinet. The Supreme Court clarified that the Governor was bound by the advice of the State Cabinet with regard to the powers of mercy bestowed under Article 161 of the Constitution. It also held that the Governor cannot pass the buck of mercy requests to the President else, it will render Article 161 a "dead letter".

While these are some very important issues which the court clarified, it seems to have skipped a fundamental query while delivering 'complete justice'. That question is whether the governor of a state can put a remission appeal at the backburner for donkey's years, despite a recommendation for the same by the state cabinet.

Delayed justice delivery and flimsy investigations are some of the many problems that taint the judicial process of our country. The glaring delay by the Governor in considering the mercy appeal of Perarivalan even after the advice of the Tamil Nadu Council of Ministers in favour of mercy, is only a reminder to the unfortunate loopholes that contribute to the axiom of "justice delayed is justice denied". Is there no limit on the delayed disposal of mercy petitions? It shall be argued below that a mercy petition should be disposed of within a reasonable time. Undue delay is a clear violation of the right to life and personal liberty under Article 21 of the Constitution, and the right to equality before the law under Article 14 of the Constitution.

Also read: Why can't Rajiv Gandhi case convict be released after serving 36 years in prison: Supreme Court to Centre

Article 14 and 21 violations

Unfortunately, there is no prescribed time limit within which the Governor is bound to take a decision regarding mercy petitions. However, this does not imply that the Governor can put a mercy petition under Article 161 on the back burner for an inordinate period. This amounts to arbitrary exercise of powers, and is a clear contravention of the provision of 'due process' vis-à-vis "procedure established by law" under Article 21.

The Supreme Court has, in its May judgment, expressed concern about the long delay of the Governor in considering the remission petition of Perarivalan. It pointed out that such delay is "inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner". Further, the Supreme Court, in Maneka Gandhi versus Union of India (1978), had emphasised on a fair procedure, which is a natural demand of Article 21, and the lack of due procedure hits at the core of Article 21. The Governor should decide on a mercy petition expeditiously as it involves a life and death question for the convict. Unnecessary procrastination by the Governor in deciding the acceptance or rejection of a mercy petition is extremely traumatic and unjust for a convict who is on the death row, the Supreme Court had held in a 2014 judgment. In fact, there are scholarly opinions which point out that inexplainable delays in deciding on a mercy petition can cause the court to intervene and decide on the mercy petition or fix a reasonable time to dispose of the said petition.

This however, cannot be a norm. Our Constitutional structure envisions a separation of power structure, wherein the duties of the executive and judiciary are distinct. Regular interventions, even for bona fide reasons, are not beneficial for the smooth running of the democratic setup. It is the duty of the Governor or executive to perform their job without forcing the courts of law to intervene every time for remedy.

Article 14 guarantees every citizen equality before the law irrespective of the person's innocence or guilt. The Constitution clearly confers a right on the convict and a lawful obligation on the Governor vide Article 161 to duly consider the mercy petition and consider them without any delay. However, arbitrariness has been noticed wherein, some cases are disposed of on a fast-track basis while others, like Perarivalan's, are left pending like a veritable Damocles' sword over the convict for years. For instance, while deciding the Nirbhaya case, the President had taken a short time to dispose of the mercy petition of the death row convicts, while the Governor, while exercising similar powers, took such a long time in deciding the petition of Perarivalan.

This kind of arbitrariness strikes at the core of Article 14. For any classifications to survive the scrutiny of Article 14, they have to be reasonable. Arbitrariness is antithetical to any exception of Article 14. Inordinate and protracted delay in deciding mercy petitions by the Governor, despite recommendations from the State Cabinet, is thus violative of both Articles 14 and 21 of the Constitution.

Also read: Does the judiciary lack jurisdiction to review a Governor's discretion not to pardon a convict?

Such delay is against international standards-

The Supreme Court has in several previous judgements stated that when the President or Governor delays decision on mercy petition, the convict is kept in suspense and this creates a lot of mental trauma for them and their family as they await the execution. This clearly amounts to systemic torture and injustice towards the convict. The court expressly recognized in a 2014 judgment that undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture. It is also contrary to international standards, besides being ultra vires the Constitution.

The International Covenant on Civil and Political Rights ('ICCPR') vide Article 7 prohibits torturous, cruel, inhuman and degrading treatment or punishment. Article 6 of the ICCPR, to which India is a party, establishes the right to life as an inherent, inalienable right that cannot be taken away arbitrarily. Article 7 of the Universal Declaration of Human Rights enshrines equality of all persons before the law and equal protection of the law.

Also read: The Cruelty of Clemency: Mercy Petitions and the Abolitionist Discourse

Cabinet's decision is binding on the governor

In Perarivalan's case, the Supreme Court inter alia reiterated an already well-established principle which is that the Governor of a state is bound by the decision of the Council of Ministers of that state under Article 161.

Moreover, in Maru Ram versus Union of India (1980), it has been clarified by the Supreme Court that "the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his Council of Ministers." Hence, there is no reason for so much delay on the part of the Governor in deciding an already decided and recommended matter.

Also read: Why State's apathy towards remission pleas of convicts should concern us all

There is no gainsaying that inexplicable and unwarranted delay in executing justice leads to wastage of resources of the State. A reasonable, time-bound procedure of disposing of mercy petitions is the need of the hour to increase justice delivery and efficiency. However, this reasonable time should not be too short as justice hurried is no justice at all. Furthermore, this prevents the convict from preparing mentally for the impending punishment. Too much delay will amount to 'justice delayed is justice denied'. This is a double-edged sword and there is a need for keeping an optimum balance between the rights of the convict to prevent trauma and miscarriage of justice while deciding on this reasonable time for disposing of mercy petitions.

Article 161 is required to be amended, or the Supreme Court should fix a guideline for implementation of Article 161, otherwise the current uncertainty over timelines on such matters will likely continue forever.