Recent times have seen the strong re-emergence of the popularity of the death penalty in the public consciousness. A toxic mix of perceptions about the role of the death penalty as part of our response to terrorism and sexual violence, along with a president who has demonstrated an uncomfortable eagerness to reject mercy petitions, has ensured that the unfairness in the administration of death penalty has received scant attention.
However, the judgement delivered on Tuesday by a three-judge bench of the Supreme Court, commuting the death sentence of 15 death row convicts in the Shatrughan Chauhan versus Union of India case, seeks to correct that imbalance. The guidelines issued in the judgement will hopefully prove to be a crucial step towards ensuring that India adopts a more humane process committed to the rule of law until the very end in carrying out death sentences.
After the secret executions of Ajmal Kasab and Afzal Guru, executions of Maganlal Barela in Jabalpur Central Jail along with that of Shivu and Jadeswamy in Belgaum Central Jail were stayed barely a few hours before their scheduled hour of hanging on the grounds that they were not given an opportunity to challenge the rejection of their mercy petitions. In the Shatrughan Chauhan case, the rejection of mercy petitions by the President was challenged on the grounds of undue delay in disposal of their mercy petitions, mental illness, and solitary confinement as supervening grounds.
The most significant legal determination in the judgement authored by Chief Justice P. Sathasivam in the Shatrughan Chauhan case is that undue delay by the President in rejecting mercy to a death row convict amounts to torture. Further, such inordinate and unexplained delay by the President is sufficient in itself to entitle the convict to a commutation. While the court refused to fix a certain number of years above which undue delay would amount to torture, the time taken by the President in rejecting mercy petitions of the 15 prisoners ranged between 11 years and 1.5 years.
The court commuted the death sentences of 13 prisoners on the basis of undue delay while commuting the sentences of Barela and Sundar Singh on grounds of their mental illness. Sathasivam, along with justices Ranjan Gogoi and Shiva Kirti Singh have taken the view that the crime in question is irrelevant while deciding the effects of keeping a death row prisoner waiting for a decision on his or her mercy petition. The suffering that comes with anticipating death on an every day basis for the judges amounted to torture, which was violative of the right to life under Article 21 of the Constitution.
Having held that the nature of crime is irrelevant in deciding the impact of delay, the judges proceeded to declare the April 2013 decision of the Supreme Court in the Devender Pal Singh Bhullar case to be characterized by lack of due regard to the law. The holding by a two-judge bench in the Bhullar case was that those sentenced to death under anti-terror laws could not invoke the argument of undue delay to argue for commutation was held to be an incorrect application of an earlier decision of the Supreme Court in the Triveniben case(1988). In declaring Bhullar per incuriam, the Chief Justice has done away with one of the most regressive judgements that the apex court handed down in 2013.
It must be noted that the judges are not unaware of the interests of the victim’s family in this discussion. However, they are clear that the relevant phase to account for such interests is at the sentencing stage during the trial and the subsequent confirmation proceedings before the high court and the Supreme Court. They found it unacceptable that this argument could be invoked to trump the right to life claims of prisoners who had been subjected to treatment that amounted to torture.
The court has also deftly addressed the concerns of separation of powers raised in this case. It must be remembered that in all these cases, the executive had exercised its power to reject mercy to all 15 prisoners under Article 72 of the Constitution. It was argued that the court would be usurping the powers of the executive if it commuted the death sentences after mercy was rejected but the court has made it amply clear that it was not questioning the power of the President to reject mercy petition as he or she deemed fit. The court maintained that it has extremely limited powers in exercising judicial review over the President’s decision. However, it was quick to assert that enforcement of rights was squarely within its jurisdiction and that the determination of the content of fundamental rights was best left to the judiciary. The court was of the view that these cases represented a grave violation of the right to life under Article 21 and that it was bound to protect the rights of all persons.
While the Supreme Court will receive a lot of well-deserved praise, it is crucial that we do not forget that this judgement deals with only one aspect of the administration of the death penalty in India. It deals with that aspect of the death penalty that is most high profile and receives most amount of attention from civil society and the press.
While we can’t even begin to imagine the torture it must be to await final confirmation of the state’s decision to kill, it is equally important to acknowledge the violence and unfairness that characterizes the administration of the death penalty much before the mercy petition stage. Hundreds of death row prisoners across the country continue to suffer without their voices being heard—not knowing whether they will live or die, not knowing whether they are really being represented in the courts of this country, not knowing whether the criminal justice system is interested in giving them a fair deal—desperately hoping that something somewhere in the system will come to their aid.
It is the unpredictability of it all that really kills them.
Anup Surendranath is director of the Death Penalty Research Project at National Law University, Delhi.