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Report No. 262

D. Duty of Writ Courts Carrying Out Judicial Review of Exercise of Mercy Powers

6.4 The Supreme Court has enjoined a critical role in examining the discharge of mercy jurisdiction by the executive authorities in death sentence matters. The Court has termed this body of jurisprudence as "mercy jurisprudence" Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 242, and has linked it to the "evolving standard of decency, which is the hallmark of the society." Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 242.

In fact, the Court in Shatrughan Chauhan observed that "judicial interference is the command of the Constitution" when the exercise of mercy power by the executive is lacking in due care and diligence and has become whimsical. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 244. The Court has held the following in Shatrughan Chauhan in this behalf:

242. In the aforesaid batch of cases, we are called upon to decide on an evolving jurisprudence, which India has to its credit for being at the forefront of the global legal arena. Mercy jurisprudence is a part of evolving standard of decency, which is the hallmark of the society.

243. Certainly, a series of the Constitution Benches of this Court have upheld the constitutional validity of the death sentence in India over the span of decades but these judgements in no way take away the duty to follow the due procedure established by law in the execution of sentence. Like the death sentence is passed lawfully, the execution of the sentence must also be in consonance with the constitutional mandate and not in violation of the constitutional principles.

244. It is well established that exercising of power under Articles 72/161 by the President or the Governor is a constitutional obligation and not a mere prerogative. Considering the high status of office, the Constitution Framers did not stipulate any outer time-limit for disposing of the mercy petitions under the said Articles, which means it should be decided within reasonable time.

However, when the delay caused in disposing of the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Right to seek for mercy under Articles 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Every constitutional duty must be fulfilled with due care and diligence, otherwise judicial interference is the command of the Constitution for upholding its values.

245. Remember, retribution has no constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court's duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters, it does not really interfere with the power exercised under Articles 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at paras 242-245 (Emphasis supplied)



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