Can high court review President’s decision on mercy petition?

Can a High Court commute a death sentence even after the President rejects the mercy petition and the Supreme Court upholds the sentence?

A ticklish question of law has been raised by the Centre in a petition before the Apex Court which on Wednesday issued notice and asked the Attorney General to assist it.

“The decision of the Governor/President being subjected to judicial review by the High Court would otherwise add an extra stage to the process, before the final stage of judicial review by this hon’ble Court...so as to shorten the period when the long process of the law and Constitution takes its course,” the Centre has pleaded.

The Delhi High Court had on June 28 quashed the President’s order rejecting the mercy petition and commuted the death sentence to life imprisonment in a case of a brutal murder of five members of a family, including two minors, with knife and axe in Cher village of Chhattisgarh on 26.11.2004 in the course of a dacoity.

The trial court had sentenced to death two persons in February 2008, though the Chhattisgarh High Court reversed it in case of one being a juvenile while rejecting appeal of one Sonu Sardar in 2012. The Supreme Court also upheld the death sentence.

His mercy petitions were rejected by the Chhattisgarh governor in April 2013 and by the President in May 2015. He, however, moved Delhi High Court in February 2015 to commute his death sentence. The High Court commuted it to life imprisonment on the ground that the mercy decision was vitiated because of improper exercise of power on irrelevant considerations.

The Centre has challenged the judgment, questing the power of the High Court to judicially review the decision of the President rejecting the plea to commute the sentence.

In its petition, the Centre has asked the Supreme Court to “finally set at rest this issue of the High Court exercising jurisdiction in a matter where the Supreme Court and the President have held that the circumstances of the case would require the death sentence.”

It wants the Apex Court to settle “whether a High Court would have jurisdiction at all, to entertain a writ petition under Article 226 of the Constitution to review the decision of the President of India under Article 72 of the Constitution in regard to a matter where the Supreme Court of India has finally confirmed the death sentence.”

The Centre’s stand is that the Supreme Court alone can entertain petitions against the decisions of the President.

The issue of the hearing before Delhi High Court was raised early this year by the Chhattisgarh government, but the Supreme Court then refused to take over the hearing and asked the High Court to expedite the case.

Chief Justice Dipak Misra had then frowned at Delhi High Court hearing a matter of Chhattisgarh, wondering whether it would start hearing petitions in case of all mercy petitions of the convicts rejected by the President no matter whether they come from Uttar Pradesh, West Bengal or other states.