Death Penalty Still Hanging

On June 2 this year, when the Supreme Court commuted the death sentence of Yakub Memon, the mastermind of the 1993 Mumbai blasts that killed 257 people, on account of his having been incarcerated for the last 20 years, it was just the latest in the series of commutation decisions in the last one year.

By Meha Mathur

On June 2 this year, when the Supreme Court commuted the death sentence of Yakub Memon, the mastermind of the 1993 Mumbai blasts that killed 257 people, on account of his having been incarcerated for the last 20 years, it was just the latest in the series of commutation decisions in the last one year.

Consider these: Just a few weeks before, the apex court commuted the death sentence given to convicts in the American Center attack case in Kolkata, which had killed four people and injured 20 in 2002. In January this year, it took up the writ petitions of 15 convicts in separate cases, whose mercy petitions even the president had rejected, and spared them from the gallows on account of bureaucratic delays to deal with the petitions. The apex court commuted the death sentence of Devinderpal Singh Bhullar, convicted for a 1993 blast in Delhi, to life in jail, because of his mental condition. It showed mercy on Sushil Sharma, the convict in the Naina Sahni murder case of 1995. And, last but not the least, the country witnessed much political debate over the apex court’s decision to commute the death sentences of three men convicted in the Rajiv Gandhi assassination case, a few months ago. In this case again, the president had rejected their mercy petitions.Death raw

Many of these convicts, who have been given a lease of life, can be dubbed as hardened criminals, even terrorists, who pose a grave danger to society. In fact, one can consider the SC decisions baffling, in the light of hijacks and kidnappings the world over to secure the release of dreaded terrorists. One can argue that if the purpose of justice is to ensure protection to the society, this stance of the apex court may be misplaced. Does the apex court have a clear-cut reasoning, rationale and legal philosophy behind its various orders?

The court has observed that as the upholder of justice, it cannot be swayed by arguments that the offences or the offenders were extraordinarily cruel. As the SC bench of the then Chief Justice P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh said: “The legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. 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.” There is no good reason to disqualify all TADA cases as a class from relief on account of delay in the execution of death sentence, the court said. This was in the case of writ petitions of 15 convicts in different cases, which included those punished under TADA.

Further, the SC maintained that its decisions to commute death sentences were not in the nature of questioning its own prior judgments (which punished convicts with death sentences), or rejecting the president’s right to reject mercy petitions. However, the Court wanted the president to take decisions on them within a reasonable time limit. For example, in the Rajiv Gandhi assassination case, a bench headed by the then Chief Justice of India, Sathasivam, said: “It is definitely not a pleasure for this court to interfere with the powers of the president. We implore upon the government to advise the president so that mercy petitions can be disposed of at the earliest.”

Possibly, the SC has a point. Its conclusion stems from a legal analysis of the country’s fundamental rights, which should be applicable to all citizens. Its starting point is that Article 21 of the constitution postulates that every human being has an inherent right to life and mandates that no person shall be deprived of his life or personal liberty except according to the procedures established by law. As it said, the prolonged delay in the execution of a death sentence led to “the anguish of alternating hope and despair the agony of uncertainty” and has “a dehumanizing effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the constitution.”

The court noted that in one instance, the president took 12 years to decide on a mercy petition. The Court observed: “Although, no timeframe can be set for the president for disposal of the mercy petition but we can certainly request the concerned ministry to follow its own rules rigorously which can reduce, to a large extent, the delay caused.” This delay, along with “supervening circumstances”, like insanity of a convict and dehumanizing isolation, can become the grounds for commutation of death sentences. Here, a convict becomes a “victim”, since his fundamental rights have been violated.death raw 2

The delay happens in part because of the documentation process, which requires the cooperation of the state authorities and state governments. But it’s also due to political compulsions, and the concerns of the central home ministry about the larger implications of any hanging. Even past and current presidents were known to have shied away from taking the final decision on mercy petitions, and they preferred to keep applications in cold storage.

There is some substance in the argument that courts need to take cognizance of the rights of the victims or their families, whose human rights were violated in the first place. But then, the apex court has a counter to it. In adopting a reformative approach to punishment, the SC said that the purpose of any punishment was “to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient.”

To put it in perspective, in doing away with death sentences and commuting them, the country’s highest judicial forum has only followed the clauses of international conventions, which were signed by most countries. These include: Universal Declaration of Human Rights, 1948, and the United Nations Covenant on Civil and Political Rights, 1966. More importantly, India was a signatory to both; the resultant philosophy that emerged was that capital punishment should be ordered in the “rarest of the rare” cases.

TRIAL AND ERROR? (From top) The death sentences of Yakub Memon, Sushil Sharma and Devinderpal Singh Bhullar were  commuted by SC

TRIAL AND ERROR: The death sentences of Yakub Memon, Sushil Sharma and Devinderpal Singh Bhullar were commuted by SC.

Therefore, in the last few years, the highest court of the land refused to award death penalties to convicts in high-profile murder cases, such as those of Graham Staines, Jessica Lal and Priyadarshini Mattoo on the ground that these did not fall within the category of the “rarest of rare” cases. In recent times, even the executive was not too enthusiastic about death penalties. Before demitting office in July 2012, President Pratibha Patil commuted the death sentence of 35 convicts to life imprisonment.

With about 26 mercy petitions pending before President Pranab Mukherjee—some of them pending for over two decades—one can be reasonably sure that the apex court may commute many of them on the ground of delay. However, it is inevitable that the moral debate between the rights of the convicts and those of the victims will continue to reverberate in the legal corridors for years.

—With inputs from Shailendra Singh

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