ILE LEGAL BLOG

Authos – Tanisha Vijayvergiya, Student from Lovely Professional University, Jalandhar (Punjab)

INTRODUCTION

In case a convict is given the death sentence, ‘is it possible to save him?’. The answer is YES!!! It is possible. Our constitution of India provides a hierarchy of petitions to save a convict from the death sentence on a reasonable excuse. As we have seen that mostly in the rape cases the death sentence has been awarded to the convict but, sometimes rape convict is not actually guilty of the rape offence yet he is awarded the death sentence then he has an option to file a petition such as mercy petition, review petition, and Curative Petition for changing the decision. But the presence of remedy i.e., the hierarchy of petition doesn’t lead to 100% surety that one can escape or save from the death penalty in fact it is just a probability that one can save or cannot be. However, in most of the countries, it is a de facto issue or abolished part of their law, somewhere it is still prevalent. Then the question arises, ‘what is the hierarchy of a petition?’, ‘what is the process to file a petition?’. For answers to these questions let us put a glance at the following points.

SCOPE OF DEATH PENALTY

Globally, 104 countries have completely abolished the death penalty whereas, 29 other counties have abolished it de-facto. It means that no execution of the death penalty has been carried out in the last 10 years in these 29 countries. Concerning the death penalty, a doctrine was formulated i.e., the doctrine of Rarest of Rare.

This doctrine was established in the case of Bacchan Singh vs. the State of Punjab. But the court left the doctrine undefined. Later in the case of Macchi Singh vs. the State of Punjab, the court tried to determine which type of crime falls under this doctrine but didn’t get success. Then at last, in 2008, the court exactly defined this doctrine in Prajeet Kumar Singh vs. the State of Bihar. The court held that the death sentence will be provided in extremely brutal cases.

HIERARCHY OF PETITION

Mercy petition
Review petition
Curative petition

MERCY PETITION

The Indian Constitution provides that the President of India can grant a pardon to a convict who presents a mercy petition under Article 72; an equivalent power of pardon is also granted to the Governors of States under Article 161 of the Constitution. An individual can file or have his relative file a mercy petition on his behalf, which is then sent to Home Affairs. A convict under the death sentence is allowed to make the petition within a period of 7 days. Then, the Home Ministry consulted with the state government and then sent their views to the President. Concerning rejection or acceptance of a petition, the Constitution of India doesn’t provide any specific time or limit to accept or reject the mercy petition. But if the president grants an unfair pardon then, the Supreme Court can overrule it.

REVIEW PETITION

In India, a binding decision of SC/HC can be reviewed in the Review Petition. This petition is filed under Article 137 of the Indian Constitution.

Principle of Stare Decisis: It means to not disturb the undesired. To put it another way, precedents that have stood the test of time should not be altered. The legal Maxim related to this principle is, ‘Stare decisis et non quieta movere’.

As per this principle, the court cannot settle a decision without a strong case. This provision regarding the petition is the exception to the Stare Decisis principle.

Article 137 provides that subject to the provision of any law and rule made under Article 145, the Supreme Court has the power to review any judgement pronounced by it. Under the Supreme Court Rules, 1966, such a petition needs to be filed within 30 days from the date of judgement. After the review petition, the last option for justice is the Curative Petition.

CURATIVE PETITION

The Constitution specifies that a petition for Curative Action must be filed under Article 142. Originally, the concept of Curative Petition was introduced in the case Rupa Ashok Hurra v. Ashok Hurra and Anr. In order to submit this petition to three senior-most judges, it must be certified by a senior Advocate. Although there is no time limit for filing the curative petition, there should be a minimum of 14 days between the date of rejection and the date of the execution.

In the year 2013, an amendment was made. A man can be sentenced to death in cases of rape if he inflicts an injury upon a woman that results in her death or in her being rendered incapable of being alive. Furthermore, repeat rape offenders could also face the death penalty under the Criminal Law (Amendment) Act of 2013.

CURRENT SCENARIO

In the year 2014, a new case came into the picture i.e., Shatrughan Chauhan Case. During this case, the Supreme Court of India ruled that the convicts must be given the opportunity to petition for mercy before death is carried out. It is thus necessary to set a time frame for the filing of a curative petition. addition, in this case, the period of filing the mercy petition has also changed. It has been reduced from 14 days to 7 days. Now, if a convict has been awarded the death penalty, then he has to file a mercy petition within 7 days.

CONCLUSION

It has been concluded from the above-stated point that if a convict has been awarded by death penalty, then there is the possibility to save him from it. At the foremost option, one has to file a mercy petition within 7 days. If one doesn’t get any positive response then, one can file a Review petition. If the convict is not satisfied with it then the last option to get justice is a Curative petition. Concerning the death penalty in rape cases, the 2013 amendment brought a change in the law that added the rape case for the death penalty if the act of man leads to the death of the woman or puts her into a persistent vegetative state. Hence, one has three options to save himself/herself from the death penalty.

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