DGP Entertaining 'Mercy Petitions' Against Departmental Action Is Unconstitutional: Madras High Court

The Madras High Court recently observed that the power to entertain mercy petition of any convicted person under any law to which the executive power of the State extends is only available to the Governor of the State.

Thus, the office of the Director General of Police (DGP) has no statutory power to entertain mercy petitions against orders passed in departmental action. Such an exercise of power by the DGP is thus in violation of the Indian Constitution.

The power of entertaining the mercy petition is conferred only on the Constitutional Authority, namely, the 'Governor of the State' under Article 161 of the Constitution of India...Such a power conferred to the Governor of a State under Article 161 of the Constitution of India, cannot be exercised by any other Executive Authority in the State. Therefore, entertaining a mercy petition by the Office of the Director General of Police is in violation of the Indian Constitution and no such power has been conferred on any of the Authority, Justice SM Subramaniam observed.

The court was hearing a petition by a former Woman Police Constable who was given a penalty of compulsory retirement for mishandling gold jewellery associated with a case. This was confirmed by the Additional Director General of Police in a statutory appeal.

The petitioner then filed a Mercy Petition before the DGP. However, by this time the ADGP who had heard the petitioner's matter had been promoted to DGP. Thus, the petitioner's mercy petition was rejected on the ground that the appeal and the mercy petition could not be decided by the same person. Against this, she approached the High Court.

The court did not find any infirmity in respect of the procedure followed by the Disciplinary Authority in conducting the departmental proceedings. The court was rather concerned with the manner in which the authorities were entertaining mercy petitions in violation of the rules and without jurisdiction.

The court noted that the exercise of jurisdiction by authorities in excess of their jurisdiction would result in colorable exercise of power.

It cannot be in dispute that an Authority, who has no jurisdiction to entertain a review petition or mercy petition can be allowed to decide such petitions in violation of the Statutory Rules and in the event of allowing such Authorities to exceed their jurisdiction, it will result in colourable exercise of power leading to unconstitutionality. 

The court also noted that such exercise may cause an anomalous situation in administrative affairs and further cause ill effect to the administrative discipline, which is a constitutional mandate. The administrative discipline in the matter of deciding the issues either as a Punishing Authority, Appellate Authority, or Review Authority was to be maintained scrupulously by all the Authorities concerned, it said.

The court noted that under Rule 15-AA of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 the power for review was upon the State Government either on its own motion or otherwise on the ground of new material or evidence which was not available at the time of passing of the order. This power could not be used by the DGP; Specified Authority under the Rule alone is empowered to exercise this jurisdiction.

Thus, the court directed the Government to issue notice to and initiate appropriate action against authorities who had excessively or improperly exercised powers.

Circulars are also to be issued informing the Competent Authorities to exercise the powers in accordance with the Acts and Rules and that in the event of excess exercise, the Authorities will be liable for prosecution under the Discipline and Appeal Rules as the same would be considered as Administrative indiscipline.

With respect to the present case, the court held that the Petitioner was at liberty to approach the Revisional Authority in the prescribed format and directed the Competent Authority to decide the matter on merits and in accordance with law.

Case Title: Prasanna Gunasundari v The Deputy Inspector General of Police and others

Citation: 2022 LiveLaw (Mad) 451

Case No: WP No.2554 of 2017

Counsel for Petitioner: Mr. K Venkataramani, Senior Counsel for Mr. M Muthappan

Counsel for the Respondents: Mr. B Vijay, Additional Govt Pleader