Judicial Review of Mercy Petitions

Constitutional courts can examine whether a decision on a mercy petition was taken lawfully, even though granting mercy is an executive function. This judicial review is limited: courts examine the legality of the decision-making process and protection of fundamental rights, rather than reconsidering guilt or substituting their own assessment of mercy.

Constitutional framework

The clemency powers of the President and Governor are constitutional powers, not powers beyond judicial scrutiny.

• Article 72 empowers the President to grant clemency in court-martial cases, offences concerning matters within Union executive power, and all cases involving a death sentence.
• Article 161 empowers the Governor to grant clemency for offences concerning matters within the State's executive power.
• These powers are exercised on ministerial advice; they are not the personal discretion of the President or Governor.
• The Supreme Court under Article 32 and High Courts under Article 226 can review clemency decisions within the limits of judicial review.

Grounds for reviewing a mercy decision

In Epuru Sudhakar v. Government of Andhra Pradesh (2006), the Supreme Court identified grounds on which an order exercising clemency may be challenged.

• Non-application of mind occurs when the authority fails to genuinely consider the case and relevant material.
• Mala fides arise when the decision is made in bad faith or for an improper purpose.
• The decision may be reviewed if it rests on extraneous or wholly irrelevant considerations.
• Review is available where relevant material has been excluded from consideration.
• An arbitrary decision is also open to judicial review.

Death sentences and protection of life

In death-sentence cases, review also protects Article 21, which requires deprivation of life to follow a lawful, fair, just and reasonable procedure.

• In Shatrughan Chauhan v. Union of India (2014), the Supreme Court recognised undue, unexplained delay in deciding mercy petitions as a ground for commutation.
• There is no fixed period after which delay automatically requires commutation; the court examines the circumstances and explanation for the delay.
• Supervening circumstances, including mental illness and unlawful solitary confinement, can also be relevant to whether execution would violate constitutional protections.

Limits and remedies

Judicial review is not an appeal on the merits of the mercy petition. Courts do not ordinarily decide whether clemency should have been granted merely because another view is possible.

• An unlawful clemency decision may be set aside and returned to the executive for fresh consideration.
• In appropriate death-sentence cases involving constitutional violations, the court may commute the sentence to life imprisonment.