The guidelines issued by the Supreme Court while commuting the death sentences against 15 death row prisoners to life imprisonment is proof that the process followed in past judicial executions was flawed. In its judgment, the Supreme Court frowned upon the tendency of the executive to keep mercy petitions pending for years. While not questioning the powers of pardon that the Constitution’s Articles 72 and 161 confer on the President and governors, the court ruled that even death-row convicts could avail of Article 21 (right to life) to seek commutation in case of unreasonable delays.
Even as the inhumanity of the death penalty remains a vexing question for lawmakers and judges, an equally troublesome scenario in recent years has been the delay in disposing of mercy petitions. Both past Presidents and home ministers have been responsible, but it has been speculated that the moral and ethical dimensions of the issue prevented them from acting hastily.
Among the guidelines that the state will now have to follow include ending solitary confinement, conducting physical and mental health examinations, and offering legal aid to convicts preparing mercy petitions. The court also mandated that the rejection of a mercy petition be communicated in writing to the convict, that a minimum of 14 days time should elapse between rejection and execution to enable the convict to complete his world affairs, and that the family should be allowed a final meeting with the prisoner.
The judgment offers hope to Rajiv Gandhi assassination convict AG Perarivalan and Khalistan militant Devinder Singh Bhullar. Both their mercy petitions were delayed by several years before being rejected while Bhullar is also reportedly suffering from mental and physical ailments.
While the court did not enter into the constitutionality of capital punishment, the efficacy of capital punishments in creating deterrence has been energetically contested by human rights activists.
Statistical evidence does not tell us that societies which execute the most number of prisoners have become any less violent. For nearly eight years, from 2004 to 2012, India refrained from executing death row prisoners. The unofficial moratorium on execution was interrupted by the Ajmal Kasab and Afzal Guru hangings. Read against the guidelines that now come into effect, both the executions did not follow any of them. Both men were executed in secrecy, their families were not informed, and neither prisoner was allowed to adequately prepare for the end. In its judgment, the Supreme Court reaffirmed that pardoning powers and the right to take away life must not be done in violation of constitutional principles.
Most of the convicts who earned a reprieve on Tuesday had their mercy petitions rejected in early 2013 by President Pranab Mukherjee. Some of their mercy petitions were pending for several years. In one case, it was pending for nine years. Like President Mukherjee who has already rejected more mercy petitions than other recent presidents, the judiciary has also been dogged by a similar inconsistency. Judges continue to differ on their views on death penalty, and no uniform yardstick on determining the “rarest of rare” category is available.
Similarly, deciding which case qualifies for commutation is best exemplified by what happened to Bhullar. The same judge who, a month earlier commuted a death sentence because of a 12-year-delay in disposing of a mercy petition, confirmed Bhullar’s death penalty despite an 11-year-delay, because the charges against him were terrorism-related.