1. The petitioner is a condemned prisoner, as he was punished under charges framed against him under Section 302 of the Indian Penal Code. Though the Sessions Court, Erode held that the prosecution had failed to prove that the petitioner had committed the offence, the High Court, .n appeal, reversed the said judgment and awarded capital punishment of death to the petitioner. Even further appeal to the Supreme Court, ended in dismissal. Thereafter, the petitioner made an application to The President of India invoking His mercy under Article 72 of the Constitution of India, to remit the sentence imposed on him. The same has been rejected by The President of India, which has been informed to the petitioner, under the impugned order, which is now under challenge in this Writ Petition. People's Union for Civil Liberties, Tamil Nadu and Pondicherry, and the President Co-ordinator, Campaign against death penalty have filed petitions to implead them as parties-respondents in the Writ Petition so as to enable them to assist the Court to decide the issue and they have been imp leaded as respondents 7 and 8. The State Government and the Government of India have filed their respective counter affidavits explaining the reasons for the delay.
7. Mr.Prasad and Mr.Giridhar, learned counsel for respondents 7 and 8 respectively while supporting the above said submission of the learned counsel appearing for the petitioner, have submitted that every day's delay has to be explained and the reason for such rejection should be given by The President of India, as the said proceedings are subjected to judicial review on merits. It is also submitted that The President of India has to act only on the advice of the Council of Ministers before exercising powers under Article 72 of the Constitution of India. According to them, in the present case, no such advice has been given to The President of India. The power to be exercised under Article 72 of the Constitution of India is an executive function and not executive power and so such executive function cannot be the subject matter of Business Rules.
8. Mr.Prasad and Mr.Giridhar, learned counsel appearing for the 7th and 8th respondents have further submitted, with eager to save the life of the petitioner, that though it is well settled that the delay in disposing of the case by the Courts cannot be taken into consideration, the delay in the hands of the Executive in disposing of the mercy petition has to be taken into consideration due to which the petitioner has suffered mental agony. They have also submitted that the act of pardon by The President of India under Article 72 of the Constitution of India is not a private act of grace, but it is a part of the constitutional scheme.
(3) Did The President of India deal with the mercy petition of the petitioner, after getting advice from the Council of Ministers?
11. In this case, we are concerned with the rejection of the mercy petition filed by the petitioner before The President of India. The President of India exercising powers under Article 72 of the Constitution of India, has dealt with the mercy petition of the petitioner.
12. Article 72 of the Constitution reads as follows:-
"72. Power of President to grant pardons, etc.; and to suspend, remit or commute sentences in certain cases:-