CAN DELAY IN EXECUTION OF DEATH SENTENCES RENDER IT UNCONSTITUTIONAL?
Death sentence (capital punishment) is a highly controversial area of criminal jurisprudence. It has divided the world into two camps: Abolitionists and Retentionists. The chief arguments of the abolitionists are: (i) Death penalty is irreversible, it can be or has been inflicted upon innocent people. But there is no convincing evidence that death penalty serves any penalogical purpose. (ii) Its deterrent effect remains unproven, (iii) Execution by whatever means is a cruel inhuman and degrading punishment. The retentionists argue that: (i) A murderer who takes the life of another forfeits his right to his own life. (ii) Death penalty serves as a deterrent to the criminals. (iii) It is the duty of the state to take revenge on behalf of the victim. (iv) Death sentence is not usually awarded, it is awarded only in cases of “rarest of rare crimes”.
Senior counsel Ram Jethmalani, who represented death row convict Murugan in the Rajiv Gandhi Assassination Casestated in the Madras High Court that 11 year delay in executing the death penalty was itself in violation of fundamental rights, hence unconstitutional. An undue delay violated Article 21 of the Constitution (protection of life and personal liberty). Unless the delay is properly explained or justified, it makes the death penalty immoral, illegal and unconstitutional. In the Rajiv Gandhi Assassination Case an inordinate delay of 11 years occurred in considering the mercy pleas of the three death convicts, Murugan, Santhan and Perarivalan, with their pleas being ultimately rejected on August 11, 2011 by the President of India. This is only one instance of the inhuman, unconscionable and arbitrary manner in which mercy pleas of convicts condemned to death are kept pending by the government for years on end. The courts of civilised states have recognised and acknowledged that a prolonged delay in executing a death sentence can make the punishment inhuman and degrading. Afzal Guru, convicted for his role in the 2001 terrorist attack on parliament, has been on death row for nearly 5 years, after his appeal was dismissed by the Supreme Court on August 5, 2005. His execution, due on October 20, 2006, was stayed by the government because a clemency petition was filed by his family to the President. A decision on the clemency petition has not been taken till today. In the meantime Afzal Guru suffers in solitary isolation, not knowing whether he will be executed or not. The trauma and physical stress coupled with solitary confinement of a convict known as the “death-row phenomenon” is itself a cruel punishment. The prolonged anguish of oscillating between hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of not only the convict but also his family should not be allowed in civilised societies. In Dhananjoy Chatterjee v State of West Bengal, the Supreme Court observed: “Imposition of appropriate punishment is the manner in which the courts respond to society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime”. A passage from Bhagat Singh’s last petition to the Governor of Punjab should give us pause: “As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right’ serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e. we claim to be shot dead instead of to be hanged”.
The constitutional validity of section 302 of IPC & section 354(3) of CrPC was challenged before the Supreme Court in Bachan Singh which had to be tested on the anvil of Articles 14, 19 and 21 of the Constitution. In the above mentioned case it shows that the court is perceptibly veering away from capital punishment to life imprisonment. A forceful plea was made before the Supreme Court for laying down standards or norms restricting the area of imposition of death penalty to a narrow category of murders. The plea was rejected by the court holding that first, there is little agreement among penologist and jurist on what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment. Secondly, the criminal cases do not fall into the same behavioural pattern. Thirdly, standardisation of sentencing procedure which leaves little room for judicial discretion to take account of variation in culpability ceases to be judicial. And fourthly, standardisation of sentencing discretion is a policy matter which belongs to the sphere of legislation. The principle of “rarest of rare cases” was laid down in the above mentioned case. The Supreme Court in Swamy Shradananda case, where the convict (a tantrik) had committed gruesome murder of his wife, taking into consideration some mitigating circumstances, commuted death sentence of the convict and substituted it with imprisonment for life and directed that he shall not be released from prison till the rest of his life. In the United States of America, this type of sentence is known as life imprisonment without parole (LWOP). Some penologists argue that LWOP is a far more severe punishment than death.
In the instant case, the Assam trial court held Ram Deo Chauhan alias Raj Nath Chauhan guilty of murdering four members of a family in March 1992 and slapped the death penalty on him. This was confirmed by the Guwahati High Court and later by the Supreme Court in July 2000. Justice K. T. Thomas in his minority judgment, felt that since there was a doubt whether Ram Deo was a minor or not when the offence was committed, it would be in the interest of justice to commute death to life imprisonment. The Mattoo case dealt with the brutal rape and murder of Priyadarshini Mattoo, a law student, by one of her seniors, Santosh Singh. This was a crime of the most abominable variety. The trial court was convinced that Santosh Singh was the culprit. It, however, acquitted him on the basis of certain inconsistencies in the forensic evidence which let chain of custody of samples picked up at the scene. The CBI escalated the matter to the Delhi High Court, which accepted the prosecution story in totality and sentenced Santosh to death. The matter went in appeal to the Supreme Court. Delivering the judgment recently, the two member bench held the accused guilty but commuted his sentence to one of life. The judges cited the youth of the accused and the fact that he got married after acquittal by the Trial Court and became a father as reasons why he deserved compassion. In Jagdish v State of Madhya Pradesh, the court in a strongly expressed judgment noted the cruelty and torture of a prisoner on death row caused by the inordinate delay in deciding his petition. The court cited a U.S. Supreme Court decision which observed “The cruelty of capital punishment lies not in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution. The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of the sentence and the actual infliction of death.” The Constitution doesn’t provide any maximum time-limit within which a mercy petition has to be decided. There have been instances of mercy petitions lying with the President for over a decade without any decision being taken. The Ministry of Home Affairs can’t ask the President to speed up the process.
In Smt.Triveniben v State of Gujarat, the Supreme Court held as under:
“Constitution of India, Articles 32 and 21-Death sentence awarded by court-Undue delay in execution of death sentence-It entitles the condemned prisoner under Article 32 of Constitution of India to approach court that his death sentence be commuted to life imprisonment-No fixed period of delay, however, could be fixed to make the death sentence in-executable-The delay which could be considered to make the death sentence in-executable starts from the date the judgment by apex court is pronounced i.e when judicial process has come to an end-The delay which is to be considered is the delay is disposal of mercy petitions or delays occurring at the instance of the executive”.
The Home Ministry has rejected the contention of Devender Pal Singh Bhullar, sentenced to death for the 1993 bomb attack on the then youth congress president M S Bitta, that he was entitled to get his death penalty commuted to life term in view of the delay over his mercy petition. In an affidavit filed in the Supreme Court, Joint Secretary J L Chugh cited more than a dozen reasons in a bid to repudiate Bhullar’s arguments. Mercy cannot be claimed as a matter a right. In death sentence cases, the prisoner cannot be executed before the disposal/rejection of the mercy petition and this period of time cannot be claimed as double sentence i.e death plus imprisonment, the affidavit said in response to the main contention of the death row convict. The legal as well as constitutional processes are time consuming and any delay arising from this “is not a mitigating circumstance for commutation of death sentence and also does not reduce the gravity of the crime”. The Ministry also contended that the “discretionary powers” enjoyed by the President under Article 72 of the Constitution for granting mercy or rejecting such pleas “are special powers overriding all other laws, rules and regulations in force”. The Presidential decisions in such cases “cannot be altered, modified or interfered with in any manner whatsoever by any statutory provision or authority”. Also, no time frame could be set for the president in this regard. The Home Ministry further contended that “delay by itself does not entail the person under sentence of death to demand for quashing the sentence and converting it to life imprisonment. “The inordinate delay may be a significant factor, but that by itself cannot render the execution unconstitutional,” it was contended. The Supreme Court could, however, consider the delay and decide whether the execution of sentence should be carried out or altered into imprisonment for life, it said. The Ministry described as a “specious argument” Bhullar’s contention that the delay “is an act of cruelty” as it had added to his suffering. “It is the pendency of the mercy petition that has given the petitioner the right to live, albeit in prison. Besides, even if the mercy petition were to be allowed, the prisoner would not become free. He would remain in prison for the rest of his natural life, unless a specific order is passed under section 433 of Cr PC. Further, “no fixed period of delay can be held to make the death sentence non-executable”. Bhullar was convicted for a terror act which resulted in the killing of nine persons, besides leaving 29 injured. Considering all this, Bhullar’s plea is “devoid of merit” and hence should be dismissed, the government said.
The short stay on the execution of death row convicts Perarivalan, Santhan and Murugan who were involved in the assassination of Rajiv Gandhi in 1991 has become an occasion to revisit the old debate on whether or not capital punishment should be outlawed in India. But one pertinent question that must also be asked here is - given that death sentences continue to be awarded in our country, why does it take so long to execute them? Some legal experts believe that if the system cannot function without such delays, it would only be just and humane to commute the punishment to life imprisonment. In the case of Perarivalan, Santhan and Murugan, the Supreme Court upheld their death penalties 1999, their plea for clemency was submitted to the president in 2000. It was only last month, i.e. 11 years after their clemency plea was submitted, that the President finally rejected it. Lawyers in the case, including senior counsel Ram Jethmalani who appeared for Murugan, have argued that the 11 year delay in carrying out the death penalty was itself a violation of the convict’s fundamental rights. There are several other instances of inordinate delays on the part of the authorities in meting out capital punishment. Afzal Guru, pronounced guilty of conspiracy the December 2001 attack on Parliament, was sentenced to death by the Supreme Court in 2004. The sentence was due to be carried on October 20, 2006. But the execution was stayed after his wife filed a mercy petition. Early last month, the Indian Home Ministry recommended that the President reject his petition. The matter is pending before the President.
But leaving aside the lengthy trial process, what explains the unusually long hiatus between the Apex Court upholding a death sentence and the final execution of the penalty. The ineffectual legal system should be blamed, and then there are vested interests from the political sphere at play which essentially stall efforts to execute sentences. In a 1983 case, the Apex Court held that a delay of two years for execution was permissible, beyond which the sentence ought to be converted to life. Again, in a 1989 ruling, the Supreme Court, acknowledging the suffering endured in the long way for execution, said: when mercy petitions under Article 72 or 161 are received by the authorities concerned, it is expected that these petitions shall be disposed of expeditiously. Undue long delay in execution of the sentence of death will entitle the condemned person to approach this court under Article 32(right to approach the Supreme Court) to look into this. To the lay citizen who wants some visible evidence of justice being done in case of a horrendous crime, the delays in executing a death sentence seem inexplicable. But legal experts say that it is not so easy to lay down iron clad rules to prevent them. “People who are administering criminal justice have to be balanced. In the conduct of such affairs, they cannot show vendetta”. The country is not abolishing capital punishment, and on top of that there is this delay in carrying out sentences. So, basically, they are doing nothing - neither are they creating a culture of compassion nor deterring anyone. Agrees Justice K. T. Thomas, who presided over the bench that handed the death penalty to the accused in the Rajiv Gandhi assassination: “The longer the wait for the execution of the death sentence, the greater should be the chance of commutation. One cannot put a person perpetually on tenterhooks. This should be ground enough to commute his sentence. In UK where life without parole sentences are used. “which means, a life sentence means a sentence for life - that is they won’t be allowed to come out of jail till they die. In most capital punishment cases, the Indian government’s attitude is actually similar, but they won’t make it official. This is abominable - if one is sentenced for a life in jail, one will at least know that he or she will be alive in jail. In some other countries where capital punishment is in force, the execution of the sentence usually takes much less time. For instance, Timothy McVeigh who was found guilty of the murder of 168 people in the 1995 bombing of a government building in Oklahoma city, USA, was sentenced to death in 1997 and executed in 2001. The delays in dispensing with a mercy petition just makes the agony worse, not to mention the fact that in the process, justice is also not seen to be done.
What really is the need of the hour is establishment of a time frame within which the mercy petitions are to be disposed off. It definitely is inhuman to delay the death sentence, affecting the convicted and his family as well. But it should also be noted that the convicted was awarded a death sentence by law because of his clearly established inhuman actions. It is not only the convict’s family that is distressed but also the families that were affected by the convict’s actions, waiting if justice will be served and the guilty be punished. Merely stating delay in disposing the mercy petitions should not be reason enough to commute the death sentence. This delay could have been a result of complex procedures under the Constitution for processing the mercy petition or due to the presence of government’s unseen hand to harness their political interests. Whatever be the reason, citing delay to be inhuman, for reducing the sentence is also nothing short of being inhuman to the families at a loss. Government should seriously consider in abolishing death penalty. If they take years to decide on the mercy petitions of the accused, this is merely a joke on the fundamental rights of the concerned persons. The government does not have the will to think about the problem. If a person is in jail for more than 20 years and his mercy petition is sent to the President for accepting or rejecting the petition. The government’s answer is that there is no time limit. The inordinate delay on the part of authorities, would give a chance to other states, viz. Punjab for Bhullar, Kashmir to the terrorist who bombed Indian Parliament. Prolonged judicial process in inordinate delays in deciding mercy petitions is a real torture and grave injustice for the families of the victims. Till the time death penalty is there in our country, the judicial process should be swift. “JUSTICE DELAYED IS JUSTICE DENIED”.
 Mr. Rajiv Gandhi was assassinated on May 21, 1991.
 State (Through CBI) v Santosh Kumar Singh 2007 CriLJ 964: 133 (2006) DLT 393.