Of Junking the Machinery of Death

By V. Suresh,

On 21st January, 2013, The Supreme Court of India delivered a landmark judgment in `Shatrughan Chauhan vs. Union of India’ holding that “undue, unexplained and inordinate delay in execution due to pendency of mercy petitions” is a ground for the courts to consider the plea for commuting death penalty to life imprisonment. Very importantly, the Supreme Court also added, that the grievance of the death row convict that “the executive as well as the constitutional authorities have failed to take note of / consider the relevant aspects” of her / his case is also a ground for the court to consider the plea for commutation.

death penalty is not justice

The judgment delivered by P. Sathasivam, Chief Justice of India for himself and Justices Ranjan Gogoi and Shiv Kirti Singh set at rest a raging controversy over whether delay in considering mercy petitions by the President / Governor was ground to consider petitions for commutation. The judgment not only clarified the position unambiguously but also in one stroke granted life back to 15 prisoners whose executions were stayed literally hours before their execution. The Court pointed out that “keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him / her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death”. Very significantly the SC pointed out that at the stage of considering whether there was delay or not in disposing the mercy petition by the executive, the “gravity of the crime” or the type of murders committed cannot be the basis to excuse the agonizing delay.

The judgment is significant for reiterating some key principles relating to the stage of mercy petitions The SC authoritatively clarified once again, that the power of the President or Governor to grant commutation under Articles 72 or 161 of the Constitution of India is a “constitutional responsibility of great significance” and it is open to the President “to scrutinise the evidence on record of the criminal case and come to a different conclusion from that recorded by the court in regard of the guilt of, and sentence imposed on, the accused”.

For years anti-death penalty campaigners had been pointing out that challenging rejection of mercy petitions on the ground of prolonged delay caused not by the convict himself, should be considered a violation of right to life under Article 21, and that by considering writ petitions, the court was not being asked to review the final judgment convicting the person in the criminal case, but only to consider whether there could be judicial review of the facts of delay. The judgment clarified that by exercising the power of commutation, the President does not amend or modify or supercede the judicial record, in so far as the final judgment upholding the conviction and death penalty is concerned. The judicial record remains intact, and undisturbed. It was pointed out that the nature of pardoning power is entirely different from the judicial power and cannot be regarded as an extension of it, “notwithstanding the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him”.

The court re-emphasised the “concept of supervening events” pointing out that these occur after the death penalty is finally confirmed, such as delay in considering the mercy petitions or insanity or failure to consider material facts of the case, and held that these supervening events could be issues which the court could examine. It was clarified that consideration of such grounds was an element of protection of right to life under Article 21, and courts can give “substantial relief and not merely procedural protection”.

The court sensitively handled the argument of whether commutation on ground of delay would impair the “right of victims of the deceased”. Pointing that the situations are wholly different, the court clarified that the rights of victims of crime was the primary focus at the time of final decision of the criminal cases leading to confirmation of death sentence. This has to be distinguished from the situation when prisoners came to court under Article 21 on ground of delay or mental condition of the convict as under the changed circumstances, they were themselves, “victim of guaranteed violation of guaranteed fundamental rights” entitled to seek commutation of sentence.

Following past judgments, the SC once again refrained from specifying a specific or fixed time frame for consideration of mercy petitions by the President or Governors and left it open for Courts when approached by death row prisoners on ground of supervening events like inordinate, unexplained delay in considering mercy petitions to examine the factual situation before deciding on whether to consider commutation to life sentence.

One of the most important aspects of the judgment is that the SC categorically set aside the ruling of the 2-judge Bench in Devinder Singh Bhullar case delivered in April, 2013. In the 2013 judgment a very problematic distinction was made between regular or ordinary crimes of murders due to personal animosity or property or personal disputes and `terrorist crimes’; the Bench held that the ground of delay in considering mercy petitions or even mental condition of the prisoner cannot be examined by the Supreme courts in cases of convicts under anti-terrorist laws.

The 2013 ruling in Devinder Singh Bhullar case was categorically set aside by the latest ruling in Shatrughan Chauhan case (2014) by stating that unexplained delay is one of the grounds of commutation of death sentence to life imprisonment and is “applicable to all types of cases including the offences under TADA”.

Other `supervening events’ like the mental condition of the convict including `insanity, mental illness and schizophrenia’ (see accompanying article by Maitreyi Misra), charges of being kept in `solitary confinement’ and `procedural lapses’ were also considered. While the court declined to interfere on grounds of solitary confinement in any of the 15 cases before it in 2014, the Court nevertheless clarified that under section 30 of the Prisons Act, every prisoner `under sentence of death’ after the sentence ‘shall be confined in a cell apart from all other prisoners’. The Court clarified that this stage of “under sentence of death” is reached only after the rejection of the mercy petition and not when appeals are pending in superior courts or even pending consideration of commutation petitions. Thus keeping a prisoner under solitary confinement is contrary to law and will amount to inflicting additional and separate punishment nor authorised by law. Since the court had decided to commute the death sentences of all 15 persons on ground of delay, no specific finding was given to the claim of most of these prisoners that they were kept in solitary confinement in; the records indicated that in the case of some of them, as for example Devinder Singh Bhullar or Sundar Singh, the sheer tension of long wait in death row had caused mental illness including mental insanity and schizophrenia.

The most important aspect of the judgment is the detailed guidelines provided in cases of death row prisoners. Since these prisoners are held to be entitled to protection of Article 21, the court mandated free legal aid support for all such prisoners to challenge rejection of their mercy petitions. All the authorities were directed to place the entirety of records from the trial court evidence and judgment to all other documents before the President or Governor for effective and full consideration of the commutation petition. The court based on the material before it, pointed out that in many instances the officials had only placed piece-meal or partial records before the President or Governor.

Since most death row prisoners are “extremely poor” and do not have copies of their court papers, including judgments, the prison authorities were directed to furnish all copies of relevant documents to the prisoners within a week of the confirmation of death sentence by the last court, so that they could send mercy petitions and also petition the courts.

All death row prisoners were directed to be regularly medically examined and necessary treatment given to them in view of them losing their mental balance on account of prolonged anxiety and suffering experienced on death row. Prison superintendents were directed to stop executions if they found the prisoners not in a physically or mentally fit condition and to produce the prisoner before a Medical Board for comprehensive evaluation with report sent to the State government.

Post mortems of executed prisoners has also been compulsorily mandated to ascertain the cause of death in view of the allegations that death is not caused instantaneously.

Communication of rejection of mercy petitions by President and Governor to the prisoner has been made mandatory as part of their “entitlement”. A minimum of 14 days notice has been directed to be given before fixing date of execution in order for the prisoner to `mentally prepare himself for execution’ and “to make his peace with god, prepare his will and settle other earthly affairs” and to have a last and final meeting with his family members, especially if they are residing in remote or distant areas.

Very significantly, the Supreme Court held, not permitting the 14 days advance intimation will thwart the prisoner’s `right to avail of judicial remedies’ and that “Protection of Article 21 of the Constitution of India inheres in every person, even death row prisoners, till the very last breath of their lives”.

The judgment in Shatrughan Chauhan case is certainly not the last word on death penalty jurisprudence. In fact, the judgment is very specific to the case of 15 prisoners whose mercy petitions were delayed for many years before decisions were taken. While the judgment has not disturbed the constitutionality of death penalty itself it has nevertheless authoritatively reiterated certain key principles in death penalty jurisprudence especially asserting that the death row prisoners are entitled to protection of Article 21. In the long struggle that still remains ahead of the anti-death penalty movement in India, the Shatrughan Chauhan judgment gives us a moment of relief and a brief respite to recoup our moral and mental strength.

The anti-DP campaign in India will however need to reorganise itself to mobilise public support to outlaw death penalty from our law books. Like a US SC judge said, the challenge is to banish death penalty and “junk the machinery of death”.

Dr. V. Suresh is National General Secretary of PUCL and he can be contacted at [email protected]