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Life-giving verdict | Frontline

THE NATION

DEATH PENALTY

Life-giving verdict

The Supreme Court defends the right to life and liberty of death-row convicts until the hanging and
commutes the death sentences of 15 convicts to life imprisonment. By V. VENKATESAN
ON January 21, the Supreme Court took a huge step forward in advancing the rights of death-row prisoners who had so far suffered
discrimination and injustice at the hands of the executive and the judiciary. In Shatrughan Chauhan vs Union of India, a three-judge
Bench comprising the Chief Justice of India P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh corrected some of the
inconsistencies that marked the death penalty jurisprudence and laid down guidelines to ensure that mercy petitions of death-row
convicts are fairly considered by the executive.
The power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is not to be exercised as a
matter of grace or mercy but as a constitutional duty of great significance. And there is a reasonable expectation that the executive
would exercise this power with great care and circumspection keeping in view the larger public interest.
It is a settled legal position that this power per se is above judicial review but the manner of its exercise can be legally challenged. In
other words, the courts retain the limited power of judicial review to ensure that the constitutional authorities consider all the relevant
materials before arriving at a conclusion.
In the case before the court, it was alleged that the executive decided the mercy petitions of 15 death-row convicts without considering
the supervening events that are crucial for deciding the same. Supervening events are those that occur between the confirmation of
the death sentence by the Supreme Court and the hanging of the convict. The legal basis for taking supervening circumstances into
account, according to the court, is that Article 21 (which guarantees right to life and personal liberty) inheres a right in every prisoner
until his last breath and the court will protect that right even if the noose is being tied around the condemned prisoners neck.
Inordinate delay
The court decided that inordinate delay in deciding a mercy petition is a valid supervening factor, which can render the execution of a
convict unconstitutional. The court reached this conclusion by correctly interpreting the Supreme Courts five-judge Constitution
Benchs ruling in Smt. Triveniben vs State of Gujarat (1989). It held that it could not excuse the agonising delay caused to the convict
only on the basis of the gravity of the crime.
The court rejected the governments demand that even if the delay caused seems to be undue, the matter must be referred back to the
executive and a decision must not be taken by the judiciary. The court reasoned that it was the custodian and enforcer of fundamental
rights and the final interpreter of the Constitution. Further, it said, the court was best equipped to adjudicate the content of those
rights and their requirements in a particular situation. Accepting the governments contention would mean that the court cannot give
relief to an individual for the violation of Article 21.
The court, however, added that the nature of delay, that is, whether it is undue or unreasonable, must be appreciated on the basis of
the facts of individual cases and that no exhaustive guidelines could be framed in this regard.
One of the convicted prisoners is Devender Pal Singh Bhullar, whose challenge to the rejection of his mercy petition by the President
was dismissed by a two-judge Bench of the Supreme Court last year. The Bench ruled that delay could not be claimed as a supervening
factor eligible for commutation of the death sentence if the accused was convicted for an offence of terrorism. As Bhullar was convicted
for a terrorist offence, it was held that he was not eligible for commutation on the grounds of delay.
The three-judge Bench overruled this ruling of the two-judge Bench and gave Bhullar relief from the death sentence. The three-judge
Benchs reasoning is that all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind and that the
law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity
involved in the offence.
The court held that there was no good reason to disqualify all TADA (Terrorist and Disruptive Activities (Prevention) Act) cases as a
class from relief on account of delay in execution of the death sentence, and that each case required consideration on its own facts. On
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January 31, the Supreme Court agreed to hear the curative petition of Bhullars wife, Navneet Kaur, in the light of its verdict in
Shatrughan Chauhan, and stayed his execution.
Insanity
Insanity of the convict, after the imposition of the death sentence, is the second supervening factor which the court accepted as a
ground for granting relief from executing the sentence. Counsel for two of the convicts prayed for relief on this ground. The court relied
on the International Covenant on Civil and Political Rights, which India has ratified, Clause 3(e) of the Resolution 2000/65 dated April
27, 2000, of the United Nations Commission on Human Rights, and Clause 89 of the report of the Special Rapporteur on extrajudicial,
summary or arbitrary executions published in 1996 by the UNCHR in order to hold that insanity of the convict is a relevant
supervening factor. In Paragraph 79, after citing the jail manuals of States, the court held that after it was established that the death
convict was insane and it was duly certified by a competent doctor, Article 21 undoubtedly protected the person and such person could
not be executed without further clarification from the competent authority about his mental problems.
Convicts who got relief
Convicts 1 and 2: Suresh (60) and Ramji (45): Both were sentenced to death for the murder of five family members of Sureshs brother
two adults and three childrenover a property dispute. The court found that there was a delay of 12 years in disposing of their
mercy petitions and that the Ministry of Home Affairs (MHA) had made no mention of this fact in the summary prepared for the
President. In the absence of proper, plausible and acceptable reasons for the delay, the court found this a relevant supervening factor.
Convicts 3 to 6: Bilavendran (55) Simon (50), Gnanaprakasam (60) and Madiah (64), brigand Veerappans associates: The court held
that the delay of nine years in disposing of their mercy petitions was unreasonable and that no proper explanation had been offered for
the delay. Besides, the court took note of the convicts age, their being in custody for nearly 20 years, and the fact that the summary
prepared by the MHA for the President made no mention of the delay. The court also considered the fact the Supreme Court suo motu
had enhanced the life sentence imposed on the convicts by the High Court, which was very unusual in the sentencing jurisprudence.
Here again, the court rejected the implicit suggestion that TADA cases deserved no leniency in sentencing.
Convict 7: Praveen Kumar (55): He was convicted for the murder of four members of a family. The court found that there was no
explanation for the delay of nine and a half years in disposing of his mercy petition and that the MHA had failed to mention the delay in
its summary prepared for the President.
Convict 8: Gurmeet Singh (56): He was sentenced to death for killing 13 members of his family in 1986. The court found the delay of
seven years and eight months in disposing of his mercy petition undue and unexplained. The court discovered from the MHA files that
the Home Minister had rejected the recommendation of the officials in the Ministry to commute his death sentence. Also, the MHA had
not mentioned the delay in its summary prepared for the President.
Convicts 9 and 10: Sonia (30) and Sanjeev Kumar (38): The MHA had reiterated its recommendation to reject their mercy petitions to
the President for the sixth time after the President returned their file for reconsideration on various grounds five times. The court
found that the delay of six years and five months in disposing of their mercy petitions was unexplained and undue. It also considered
the fact that Sonia had attempted suicide during the delay.
Convict 11: Sundar Singh: The court was satisfied with the observations of three psychiatrists, attached to the State Mental Health
Institute, Dehradun, that he was suffering from schizophrenia. The MHA had concealed this fact in the summary prepared for the
President. The court directed the jail authorities to provide all medical facilities to Sundar Singh if his condition required further
treatment.
Convict 12: Jafar Ali (48): He was sentenced to death for the murder of his wife and five daughters. The court found the delay of nine
years and two months in disposing of his mercy petition unexplained and undue. The court also found that the MHA, apart from
concealing this delay from the President, had also kept under wraps the fact that the Supreme Court had dismissed the convicts special
leave petition (SLP) against the imposition of the death sentence by the High Court in limine. The court, in a self-critical moment,
added that it was desirable to examine the materials on record first hand in view of the time-honoured practice of the Supreme Court
and to arrive at an independent conclusion on all issues of facts and law, unbound by the findings of the trial court and the High Court.
Convict 13: Maganlal Barela (40): He was sentenced to death for the murder of his five daughters. Although the delay in disposing of
his mercy petition was just one year, the court found, from the note prepared by the Prison Superintendent who had recommended
commutation of his death sentence to life imprisonment, that he was suffering from mental illness. The MHA had ignored this note.
Also, the MHA had not informed the President the fact that the Supreme Court had dismissed his SLP in limine.
Convicts 14 and 15: Shivu (31) and Jadeswamy (25): The court found the delay of six years in disposing of their mercy petitions undue
and unexplained and the fact that the MHA had failed to mention this delay in its summary prepared for the President a relevant
factor in commuting his death sentence to life imprisonment.
Guidelines
The Supreme Court laid down as many as 12 guidelines to safeguard the interests of death-row convicts. These are as follows:
1. Solitary or single-cell confinement prior to the rejection of mercy petition by the President is unconstitutional.
2. Superintendent of jails must intimate the rejection of mercy petitions to the nearest legal aid centre, apart from intimating the
convicts, so that they get the requisite legal aid to challenge the rejection on the grounds of supervening events, if any.
3. Once the Governor rejects a mercy petition, the Central government must fix a time limit for the State government authorities to
forward all relevant documents about the death-row convict.
4. A convict is entitled to be informed in writing by the Governor of the decision to reject the mercy petition. This decision should
forthwith be communicated to the convict and his family in writing or through some other mode of communication available.
5. All States should inform the prisoner and their family members of the rejection of the mercy petition by the President forthwith in
writing.
6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.
7. A minimum of 14 days must be stipulated between the receipt of communication of the rejection of the mercy petition and the
scheduled date of execution for the following reasons:
(a) to allow the prisoner to prepare himself mentally for execution, prepare his will, and settle other earthly affairs; and
(b) to allow the prisoner to have a last and final meeting with his family members.
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The superintendent of the jail has the obligation to inform the family members of the convict about the rejection of mercy petition in
time.
8. Regular mental health evaluation of all death-row convicts and appropriate medical care to be given to those in need.
9. On the basis of medical reports by government doctors and psychiatrists the prison superintendent should satisfy himself that the
prisoner is in a fit physical and mental condition to be executed. If the superintendent is of the opinion that the prisoner is not fit, he
should forthwith stop the execution, produce the prisoner before a medical board, and forward a report to the State government.
10. Copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy
petition and petitioning the courts.
11. Prison authorities must facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.
12. Post-mortem on death convicts after the execution is obligatory. The court found this necessary to reveal whether the prisoner
died as a result of the dislocation of the cervical vertebrate or by strangulation, which results on account of too long a drop. Postmortem, the court held, would ensure just, fair and reasonable procedure of execution of the death sentence.
The Supreme Courts judgment has raised hopes that in future, execution of the death sentence may become near impossible, even
though imposition of the death sentence itself is constitutionally permissible.
This is because the court in this case has not fully exhausted the supervening factors which may arise after the submission of a mercy
petition and which could make a prisoner eligible for commutation of the death sentence by the executive and the judiciary.

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