T. R. ANDHYARUJINA Updated:
January 30, 2014 00:41 IST
A convict sentenced to death has
a constitutional right to petition the President for relief against his
sentence, and the consideration of his petition is not an act of grace or mercy
by the President but a necessary relief provided by the Constitution On January
21, 2014 the Supreme Court of India pronounced a momentous judgment relieving
the agony of convicts in India sentenced to death awaiting their execution for
prolonged periods of time. A bench of Chief Justice P. Sathasivam and Justice
R. Gogoi and Justice Shiva Kirti Singh held that inordinate delay in deciding a
petition of a convict sentenced to death by the President can be torture and
inhumane punishment to the convict.
In such circumstances, if the
convict approaches the Court, the Court will hold that his fundamental right to
protection of life and personal liberty under Article 21 of the Constitution is
violated and the Court will commute his sentence to life imprisonment. The
Court has held that a convict sentenced to death has a Constitutional right to
petition the President for relief against his sentence, and the consideration
of his petition is not an act of grace or mercy by the President but a
necessary relief provided by the Constitution, and the Court will judicially
review the decision to execute the convict after inordinate delay. In the 15
cases of convicts facing imminent hanging after the rejection of their
petitions by the President, the Court found that there was inexplicable delay,
from seven to 12 years, in deciding their petitions by the President and
communicating the decision to the convicts.
The Court held that keeping such
a convict in suspense while his petition was not decided by the President for
many years was an agony for him which creates adverse physical conditions and
psychological stresses on him and was a trauma not only on him but also his
family awaiting his execution. The Court has also held that a Court cannot
excuse the agonising delay caused to the convict merely because of the gravity
of the crime for which the death penalty was imposed on him. With this
judgment, any uncertainty in the law on execution of death sentence is now
cleared. This is not for the first time that the Supreme Court has found that a
convict sentenced to death has a right to be treated humanely and not put to
the agony of awaiting his execution.
The Court had been in fact a
pioneer in deciding cases of delay in execution of a death sentence. As early
as 1974, Justice Krishna Iyer had written of the “brooding horror of haunting
the prisoner in the condemned cell for years.” In 1983 and 1989, the Court
delivered judgments which held that a prolonged delay in carrying out the death
sentence would be inhumane and degrading treatment to the convict. These
Supreme Court judgments were cited with approval by the Privy Council in 1994.
Despite these pronouncements of the Supreme Court, the President of India and
the government kept the petitions of death row convicts in suspense for
prolonged periods of time, sometimes as much as 15 years in disregard of the
plight of the convict and his family.
Uncertainty The law was brought
into uncertainty in 2012, when the Supreme Court was moved to commute the death
sentence on Devinder Pal Singh Bhullar who had been kept in suspense for seven
years without a decision on his petition to the President. After a prolonged
hearing in which the Court called for the records of all petitions pending
consideration by the President, a bench of two judges (Justice G.S. Singhvi and
S.J. Mukhopadhaya) held that as Bhullar was convicted under the Terrorist and
Disruptive Activities (Prevention) Act, delay in his execution was irrelevant
and refused to commute his sentence to life imprisonment. Bhullar was to be
executed after pronouncing the judgment in his case on April 12, 2013 but
because of his physical and mental condition the execution has been postponed.
Fortunately for Bhullar in the
meantime the present larger bench of three judges was called to consider the
correctness of the Bhullar judgment in the case of the 15 convicts due to be
executed after an inordinate delay of many years. The larger bench of the
Supreme Court has now differed from the view taken in Bhullar’s case and held
that the gravity of the crime was irrelevant in considering the commutation of
the sentence as this is always considered by the convicting Court sentencing
him to death. While the judgment in Bhullar’s case was reconsidered by the
Supreme Court by a larger bench to be wrong, the case of Afzal Guru could not
be considered by the Court as he had been executed by then. If ever an
execution of a death convict was carried out in the most inhumane way it was
that of Afzal Guru who was convicted and sentenced to death for the crime of
attacking Parliament.
Afzal Guru was hanged on February
9, 2013 over seven years after the Supreme Court’s pronouncement of the death
sentence on him on August 4, 2005 and over six years after his clemency
petition was made to the President of India on November 8, 2006. During this
period, he and his family remained in a day-to-day agonising suspense. Apart
from this delay, the rejection of his petition by the President was kept a
secret and deliberately not communicated to his family, lest it become the
subject of judicial consideration as had been done in other cases of delayed
execution. Within a few days after the rejection of his mercy petition, Afzal
Guru was hanged in morbid secrecy without informing his family and his body was
buried in equal secrecy in the confines of Tihar Jail in New Delhi.
The disposal of Afzal Guru’s
petition to the President had become a political matter, with the Bharatiya
Janata Party unseemingly demanding his execution and making it an issue in the
elections, and with the government for its own political considerations not
deciding on the petition. In fact, between 2006 to 2008 the then Home Minister
deliberately instructed the government of Delhi to delay responding to the file
on Afzal Guru sent to it. In 2008, in one of the most pathetic statements
revealing his mental distress, Afzal Guru during his incarceration pending his
mercy petition said in an interview: “I really wish L.K. Advani becomes India’s
next PM as he is the only one who can take a decision and hang me. At least my
pain and daily suffering will ease then.” Reconsidering its legality Though the
Court in its present judgment has not expressly referred to the inhumane
execution of Afzal Guru, during the hearing as amicus curiae I had drawn the
Court’s attention to the case of Afzal Guru.
The Court was therefore conscious
of the manner in which a convict can be secretly executed without giving him a
right to approach the Court after the rejection of his mercy petition and
without even informing his family. The Supreme Court in the present case has
therefore held that there should be a minimum period of 14 days between the
receipt of a written communication rejecting the mercy petition by the convict
and the scheduled date of execution. Such a period would enable the prisoner to
have a last and final meeting with his family members and permit him to avail
of a judicial remedy if necessary against the manner of his execution. The
Court has also held that a convict cannot be subjected to solitary confinement
during the period his petition was being considered by the government and no
convict can be executed if he was suffering from a mental illness like
schizophrenia.
Overall, the judgment of the
Supreme Court is a landmark decision in cases of carrying out of the death
penalty. It is in keeping with the judgments in other courts in the world which
have held that trifling with the carrying out of a death sentence is agonising
torture for the prisoner which a court would not permit. The death penalty
itself has been abolished in 140 countries as a cruel punishment as against 58
countries which retain it. India has retained it with the dubious and
unpredictable formula evolved by the Supreme Court of imposing it in “the
rarest of rare cases.” At some stage, the Supreme Court may have to reconsider
the legality of the death penalty itself. In the meantime, it is some
consolation that the Court has now firmly declared the illegality of the practice
in India of execution of death penalty after prolonged agonising suspense to
the convict and his family.
(T.R. Andhyarujina is a senior
advocate of the Supreme Court and former Solicitor General of India.)
Source:
http://www.thehindu.com/opinion/lead/the-agony-of-awaiting-death/article5631479.ece?homepage=true
[last accessed on 04.03.2015]
