New Delhi: In a landmark judgement, the apex court on Tuesday set out clear guidelines for convicts on death row, including the commuting of death sentence into life imprisonment if there is an “undue, unexplained and inordinate delay in execution”, either due to the pendency of mercy petitions or an executive delay.
The judgement has implications, including political, in other cases, including the petitions filed by three death row convicts in the Rajiv Gandhi assassination case who have challenged the President’s rejection of their mercy plea less than three years ago.
In the process, the apex court overruled its own verdict in the case involving Khalistani terrorist Devinderpal Singh Bhullar in which it had held that delay in deciding on a mercy plea cannot be grounds for commutation of a death sentence.
Awarding life terms to 15 death row convicts, including four aides of bandit and sandalwood smuggler Veerappan, the court went on to add that a minimum period of 14 days should be mandatory between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution. Veerappan, who evaded capture for many years, was killed by the police in 2004.
“If there is undue, unexplained and inordinate delay in execution due to pendancy of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone, however, only after satisfying that the delay was not caused at the instance of the accused himself,” a three-member bench headed by Chief Justice of India P. Sathasivam said.
Keeping in mind the sensitivities of convicts suffering mental illness and India’s ratification of the International Covenant on Civil and Political Rights (ICCPR), the Supreme Court added that insanity is a “relevant supervening factor” which should be considered while commuting a death sentence to life imprisonment.
“Insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this court in deciding whether in the facts and circumstances of the case death sentence could be commuted to life imprisonment,” the apex court said in its judgement.
The court, in its 154-page order, also ruled that solitary confinement of a prisoner, including a convict on death row, is unconstitutional and should not be allowed.
“If solitary confinement is a revolt against society’s humane essence, there is no reason to permit the same punishment to be smuggled into the prison system by naming it differently. Law is not a formal label, nor logomachy but a working technique of justice... It would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum, sans intermission, sans judicial oversight or natural justice, would be sanctioned. Common sense quarrels with such nonsense,” the Supreme Court said.
Petitioners in the case feel that the court’s elaborate guidelines would help to highlight the larger concerns around capital punishment in the country.
“It is a judgement which is a great tribute to the Indian judiciary, to the independence of the judiciary, to our constitutional values. It is a judgement according to me which will be cited around the world,” Yug Mohit Chaudhry, a lawyer who appeared on behalf of the 15 death convicts, said.
According to Chaudhry, President Pranab Mukherjee in the last one year has rejected 20 mercy petitions out of which two prisoners—Ajmal Kasab and Afzal Guru—were executed “silently and secretly”. Chaudhry then moved the court and got stay orders on the rest of the 18 and the judgement on Tuesday comes from hearing cases of 15 of those convicts put together.
“They have given elaborate guidelines to the government, which includes provision of legal aids to the prisoner at the time of the making of the mercy petition as well as after the rejection of the mercy petition,” he added.
The judgement, which was given after hearing 13 petitions from 15 convicts, put the responsibility on the home ministry to send its recommendations to the President within a reasonable time and also to send periodical reminders and to provide required materials for early decision.
The court also said that the family of the convict should be informed in writing or through any other medium prior to execution and gave elaborate guidelines on facilitating a final meeting of the convict and the family prior to execution.
“Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities. It is, therefore, necessary for prison authorities to facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution,” it said.
Divya Iyer, a Bangalore-based senior researcher at the international human rights organization Amnesty International, said the Supreme Court had recognized that “inordinate delay was in itself a punishment”.
“While we appreciate this, we would want to stress that the we do not believe that there is any appropriate length of time to be on a death row because capital punishment in and by itself is a cruel, inhumane and degrading punishment that does not serve the ends of justice and should be abolished,” she said.
The death row inmates on whose pleas the Supreme Court delivered the judgement included four aides of Veerappan; Suresh and Ramji who killed five of their relatives; Jafar Ali, who murdered his wife and five daughters; Gurmeet Singh, who killed 13 of his family members in 1986; former Haryana legislator Ralu Ram Punia’s daughter Sonia and her husband Sanjeev, convicted of killing eight members of her family, including her parents and three children of her brother, in 2001.
PTI contributed to the story.