News Excerpt
Ministry of Home Affairs has recently moved to the Supreme Court to frame guidelines to execute death penalty of condemned prisoners within seven days of rejection of their mercy petitions.


Pre-Connect
•    Multiple curative petitions and mercy pleas filed before the President of India have been rejected for the four convicts who are on death row since 2013
•    The Ministry claims that the existing guidelines are 'Accused Centric' and do not take into account an irreparable mental trauma, agony, upheaval and derangement of the victims and their family members, the collective conscience of the nation and the deterrent effect which the capital punishment intends to make.
•    Hence, MHA filed an application to seek “appropriate clarification/modification and directions” in the 2014 Shatrughan Singh Chauhan and another vs Union of India judgment that defined the procedure to be adopted in cases of prisoners on death row.
•    In the Shatrughan Chauhan versus Union of India case in 2014, the Supreme Court in its judgment had specified that all steps for execution of capital punishment, including informing the convict and his/her family members, are required to be taken care of by the State governments/Union Territories concerned in accordance with the jail manual.


PLEADINGS OF MHA
    It has been observed that even after the judgment in the Shatrughan case, convicts of even heinous crimes under the garb of Article 21 take the judicial process for a ride.
    If the convict of death sentence wants to file mercy petition, it would be mandatory for a convict of death sentence to do so only within a period of seven days from the date of receipt of death warrant issued by the competent court.
    The court should mandate all the competent courts, State governments, prison authorities in the country to issue death warrant of a convict within seven days of the rejection of his mercy petition and to execute death sentence within seven days thereafter irrespective of the stage of review petition/curative petition/mercy petition of his co-convicts.
    It would be permissible for the death convicts to file curative petition after the rejection of review petition only within a time to be stipulated by this Hon’ble Court and not thereafter”.


REVIEW PETITION AND CURATIVE PETITION
    Review Petition and curative Petition can only be filed after the final judgement. Since the Supreme Court is the apex court of the Indian judiciary, its judgment is final. However, under Article 137 of the Constitution of India, the Supreme Court is given the power to review its own judgment, if there are errors apparent on the record.
    Review petition can be filed within 30 days of the final judgement.
    Curative petition: A second review of the judgment of the Supreme Court is granted through a curative petition.
    In the 2002 case of Rupa Ashok Hurra v. Ashok Hurra, a five-judge constitutional bench of the Supreme Court unanimously held that in order to rectify gross miscarriage of justice in its final judgment, the court will “allow” the curative petition filed by the victim.
    There is no time limit on filing the curative petition.
    A curative petition in itself doesn’t automatically grant a right to a second review, certain requirements must be fulfilled before the court “allows” it. These are:
o    Court reaffirms that litigants are barred from challenging the final decision.
o    Petitioner establishes that there was a genuine violation of principles of natural justice or an allegation of bias against the judge or judges who heard the case is proven.
o    Petition is accompanied with a certification by a senior lawyer.
    Hence, it doesn’t have constitutional validation and is a judicial intervention


MERCY PETITION
    A convict who is given a death sentence and whose appeal to the Supreme Court to review its judgment has been dismissed has the option to file a mercy petition to the president within seven days from the date on which the superintendent of jail issues a notice to do so.
    Under Article 72 of the Indian Constitution, the president has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where punishment or sentence is:
o    Given by a court-martial.
o    Under a law relating to a matter to which the executive power of the union extends.
o    A death sentence.


Conclusion
    While taking care of the rights of the convicts, it is more important and need of the hour to lay down guidelines in the interest of the victims, their families and in larger public interest.
    Otherwise the guilty of such gruesome and heinous offences would be permitted to play with the majesty of law and prolong the execution of the sentence awarded to them in accordance with the law

Death Penalty in India
    Death Penalty given by subordinate Court (certified by HC) -->Appealed in High Court -->Appealed in Supreme Court -->Final Judgement ->Review petition -->Curative Petition -->Mercy Plea -->Repeated petition
    Death Penalty is given in rarest of rare Case
    Bachan Singh v State of Punjab brought up the question of the validity of capital punishment.
    It is a landmarkcase that gave birth to the “rarest of the rare cases” doctrine and still remains one of the most important cases in this subject.
    It gave constitutional validity of death penalty and the majority were of the view that neither Article 19 nor 21 is violated by capital punishment.

PEPPER IT WITH
Kehar Singh Case, Bhullar Case, Madhav Menon Committee on Reformative justice
Reformative justice vs Retributive justice, Art 72 and Art 161