The Second Bite at the Apple: Transforming a Rejected Mercy Petition into a Supreme Court Writ

INTRODUCTION : The Exhausted De Facto Dead-End

Imagine the ultimate courtroom crisis: a defense team has fought a case tirelessly through every possible layer of the Indian judicial structure. The trial concluded with a conviction, the statutory first appeal before the Sessions Court was dismissed, a criminal revision application before the High Court was rejected after years of being sub-judice, and the Supreme Court of India subsequently dismissed both a Special Leave Petition (SLP) and a subsequent Review Petition. At this stage, the judicial process has reached absolute finality. The conviction is etched into the legal record, and the client is safely behind bars, facing the full execution of their custodial sentence.

With traditional litigation avenues entirely blocked, counsel turns to the final constitutional safeguard: an executive application for the suspension, remission, or commutation of sentence. Addressed directly to the Governor, this plea seeks a compassionate reduction of the sentence based on overwhelming humanitarian grounds, family trauma, or a record of complete rehabilitation. Yet, weeks later, the state’s Home Department responds with a cold, one-line administrative rejection: “Considered and Rejected.”[1]

For many practitioners, this feels like the absolute end of the road. However, within the realm of public law and constitutional remedies, an administrative veto does not seal the client’s fate. Instead, it creates an entirely new constitutional battleground. This is the “Second Bite at the Apple” the sophisticated process of taking an arbitrary administrative rejection by the executive and transforming it into a fresh, high-stakes Writ Petition under the original jurisdiction of the Supreme Court of India.[2]

Step 1: Navigating the Governor’s Gate (The Administrative Routine)

To mount a successful challenge against an executive rejection, one must first master the strict procedural track governing clemency applications. Under the current criminal justice administration, this process is anchored by Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the legacy provisions of Section 432 of the Code of Criminal Procedure, 1973 (CrPC).[3] When a convict seeks permanent remission while in custody, the petition cannot simply be mailed directly to Raj Bhavan. It must be formally routed through the institutional apparatus, signed by the applicant, and forwarded via the internal channel of the Prison Superintendent.[4]

Convict in Jail – Prison Superintendent – Home Department Secretariat – Governor (Article 161)

While these applications are formally addressed to the Governor under Article 161 of the Constitution of India mirroring the President’s central clemency powers under Article 72 of the Constitution of India the constitutional reality is entirely administrative.[5] As settled by the landmark Constitution Bench ruling in Maru Ram v. Union of India, the Governor does not act out of personal discretion; the sovereign power of clemency must be exercised strictly on the binding “aid and advice” of the State’s Council of Ministers.[6] Consequently, the actual scrutiny, fact-checking, and evaluation of the file are handled entirely by bureaucrats within the state’s Home Department Secretariat.[7]

Because the executive branch handles an immense volume of these filings, the Home Secretariat frequently treats remission petitions as routine paperwork. Instead of performing an individual assessment, authorities often rely on standard, boilerplate templates.[8] Deeply compelling humanitarian circumstances such as an unblemished non-recidivist record over decades, a severe medical emergency involving a completely isolated spouse, or a deeply flawed police investigation are frequently dismissed with a generic rubber stamp. When the executive issues a non-speaking order that fails to disclose any internal reasoning, it acts in direct violation of the statutory spirit of Section 473(2) of the BNSS, which expects a rational, fact-based evaluation of the trial record.[9]

Step 2: Weaponizing Epuru Sudhakar and Constitutional Precedents

Historically, the executive’s power of mercy was viewed as an absolute sovereign prerogative an untouchable privilege derived from historical royal pardons that no court could question.[10] However, modern Indian constitutional jurisprudence completely dismantled this shield of sovereign immunity in the landmark case of Epuru Sudhakar v. State of Andhra Pradesh.[11] In this decision, the Supreme Court held that executive clemency is a public law duty rather than a private grace, making it subject to strict Judicial Review.[12]

The court in Epuru Sudhakar made it clear that while judges will not interfere with the pure choice of the executive, they will aggressively review the decision-making process itself.[13] If the Home Department’s rejection order fails a basic test of rationality, it can be quashed. The ruling established several clear grounds for a constitutional challenge:[14]

• An Utter Non-Application of Mind: Where the administrative authority rubber-stamps a denial without reading the file or engaging with the core facts presented.[15]
• The Presence of Mala Fide Intent: Where the decision is infected by political bias, administrative malice, or bad faith.[16]
• Reliance on Extraneous Considerations: Where the rejection is based on prohibited criteria like political connections, caste, or religious affiliations rather than rehabilitation metrics.[17]
• The Clear Suppression of Material Facts: Where vital information such as excellent prison conduct, a clear jail nominal roll, or a severe domestic health crisis is kept out of the Governor’s view.[18]
• Absolute Arbitrariness: Where the order lacks any rational basis, making it a direct violation of the right to equal treatment under Article 14 of the Constitution of India.[19]

This protective framework has been reinforced by a dense network of authoritative judgments. In Kehar Singh v. Union of India, the Supreme Court established that the merits of an executive mercy plea fall under the court’s scrutiny to ensure proper constitutional boundaries are maintained. [20]Similarly, in Satpal v. State of Haryana, a clemency order was quashed because the executive relied on incomplete records and a flawed assessment.[21]

The scope of this review was expanded in State of Haryana v. Mahender Singh, which affirmed that a convict has a legitimate expectation and a vested right to have their remission application considered fairly under the prevailing state policy.[22] This point was heavily emphasized in the recent ruling of Rohit Chaturvedi v. State of Uttarakhand, where the Supreme Court quashed an arbitrary rejection by the Ministry of Home Affairs.[23] The court held that remission is a future-oriented executive function focused entirely on reformation and social reintegration; therefore, a petition cannot be denied solely by pointing back to the heinousness or gravity of the original crime.[24]

Step 3: Activating Article 32 and Crafting the Supreme Court Writ

Once your office receives the formal administrative rejection from the Home Secretariat, the strategy shifts immediately from administrative pleading to constitutional litigation. Counsel bypasses the lower state courts and approaches the apex court directly by filing a Writ Petition (Criminal) under Article 32 of the Constitution of India.[25]

Boilerplate Executive Rejection – Invoke Article 32 – File Supreme Court Writ Petition

When drafting an Article 32 writ petition following a clemency rejection, the core argument must change completely. You are no longer re-litigating the original trial or trying to prove the client’s innocence, as those issues were resolved when the conviction became final. Instead, the petition must launch a direct attack on the flawed administrative process of the Home Department.[26] The goal is to prove that by ignoring key parameters such as the five-prong reformative criteria established in Laxman Naskar v. Union of India the state has acted in an arbitrary and unconstitutional manner.[27]

To build an airtight record for the Supreme Court, it is highly strategic to ensure that a comprehensive, sworn affidavit was attached to the original mercy petition. While an affidavit is not strictly mandatory under prison manual rules when routing papers through a Jail Superintendent, it serves as a permanent legal record.[28] A sworn affidavit ensures that your humanitarian grounds are officially documented on oath at the lower level, preventing state attorneys from claiming before the Supreme Court that your arguments are a late afterthought.[29]

Finally, the nature of the prayer in the Article 32 writ requires precise legal drafting. Counsel must not ask the Supreme Court to step into the shoes of the Governor and sign a release order directly, as that would violate the separation of powers set out in Bikas Chatterjee v. Union of India and reaffirmed in Bilkis Yakub Rasool v. Union of India.[30] Instead, the appropriate prayer is to ask for a Writ of Mandamus to quash the arbitrary rejection order and direct the state executive to reconsider the remission file fairly, properly, and with an open mind.[31]

Conclusion: The Equilibrium of Power

The procedural path from a rejected mercy petition to a successful Article 32 writ highlights the balance of power built into the Indian Constitution.[32] It serves as a vital reminder that under our legal system, no administrative body not even the executive head of a state holds absolute, unchecked authority over an individual’s personal liberty. For a defense lawyer, mastering this procedural pipeline ensures that an arbitrary administrative rejection is never a dead-end, but simply the starting point for a successful constitutional remedy.[33]

[1] Epuru Sudhakar v State of Andhra Pradesh (2006) 8 SCC 161.

[2] Shailja Singh, ‘Presidential Pardon – Can it be Subjected to Judicial Scrutiny?’ (2018) Manupatra Articles https://articles.manupatra.com accessed 29 June 2026.

[3] Bharatiya Nagarik Suraksha Sanhita 2023, s 473; Code of Criminal Procedure 1973, s 432.

[4] P Kumar, ‘The Executive Power to Pardon: Dilemmas of the Constitutional Boundary’ (2025) 3(1) Indian Journal of Integrated Research in Law 112, 115.

[5] Constitution of India, art 72; Constitution of India, art 161.

[6] Maru Ram v Union of India (1981) 1 SCC 107.

[7] ‘Executive Clemency in India: Pardoning Power Under Articles 72 and 161’ (DeFacto Law, 14 May 2024) https://www.defactolaw.in/post/executive-clemency-pardoning-power-articles-72-161 accessed 29 June 2026.

[8] Singh (n 2).

[9] Bharatiya Nagarik Suraksha Sanhita 2023, s 473(2).

[10] Kumar (n 4).

[11] Epuru Sudhakar (n 1).

[12] ibid [172].

[13] Judicial Review of Prerogative Power: Epuru Sudhakar v. Govt. Of A.P’ (CaseMine Commentary, 12 March 2022) [suspicious link removed] accessed 30 June 2026.

[14] Epuru Sudhakar (n 1).

[15] ibid.

[16] ibid.

[17] Ibid [178].

[18] ibid.

[19] Constitution of India, art 14.

[20] Kehar Singh v Union of India (1989) 1 SCC 204.

[21] Satpal v State of Haryana (2000) 5 SCC 170.

[22] State of Haryana v Mahender Singh (2007) 13 SCC 606.

[23] Rohit Chaturvedi v State of Uttarakhand Supreme Court of India (Writ Petition (Criminal) No 112 of 2025, judgment delivered 2026).

[24] ibid [24] (per Khanna J).

[25] Constitution of India, art 32.

[26] Paul Craig, ‘Theory, “Pure Theory” and Values in Public Law’ [2005] PL 440, 445.

[27] Laxman Naskar v Union of India (2000) 7 SCC 626.

[28] Kumar (n 4) 122.

[29] ‘The Indian Adaptation of Constitutional Mercy Provision’ (2020) 3(3) International Journal of Law Management & Humanities 45 https://ijlmh.com accessed 30 June 2026.

[30] Bikas Chatterjee v Union of India (2004) 7 SCC 634; Bilkis Yakub Rasool v Union of India (2024) 5 SCC 481.

[31] Craig (n 26) 448

[32] ‘The Indian Adaptation of Constitutional Mercy Provision’ (n 29) 52.

[33] CaseMine Commentary (n 13).

BY- Pradhuman Singh Sikarwar 4th year B.COM LL.B (hons.)
Institute of law, Nirma University