Mercy plea disposal delay ground for commuting death sentence: Supreme Court

Holding that delay in deciding mercy pleas or insanity/mental illness like schizophrenia could be grounds for commuting death sentences, the Supreme Court Tuesday commuted sentences of 15 death row convicts to life imprisonment.

Thirteen of these were on account of delay in deciding mercy petitions and two due to mental illness of the convicts.

In another landmark decision that will ensure that there was no repeat of the controversy over hanging of parliament attack convict Afzal Guru, the court said that there has to be 14 days gap between the communication of the mercy petition's rejection to the convict and his family members and actual execution of the death sentence.

It also held there cannot be any distinction whether a person on death row was convicted for terror or other charges in entertaining their petition challenging the rejection of their mercy pleas on grounds of inordinate, unexplained and unreasonable delay by the president.

The right to seek mercy under article 72/161 of the constitution is a constitutional right and not a mere prerogative at the discretion or whims of the executive, it said.

Every constitutional duty must be fulfilled with due care and diligence "otherwise judicial interference is the command of the Constitution for upholding its values", said a bench of Chief Justice P Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh.

"Considering the high status of office, the constitutional framers did not stipulate any outer time limit for disposing the mercy petitions under the said articles, which means it should be decided within reasonable time," said Chief Justice Sathasivam speaking for the bench.

The court said that like the death sentence is passed lawfully, the execution of the sentence must also be in consonance with the constitutional mandate.

"However, when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this court to step in and consider this aspect."

Clarifying the scope of its power of judicial review, it said that when the judiciary interferes in such matters, it does not really interfere with the power exercised under article 72/161 but only to uphold the de facto constitutional protection provided to every convict including death convicts.

The court held that there could be no distinction whether a person on death row was convicted under the Indian Penal Code or anti-terror laws.

"We are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under (now lapsed) TADA (Terrorist and Disruptive Activities Act).

"The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive," the court said, while disagreeing with its earlier judgment in Devender Pal Singh Bhullar case where it had said that the grounds of inordinate delay in deciding the mercy petition would not be applicable in the case of persons convicted under TADA.

The court said it is "necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution".

"Without sufficient notice of the scheduled date of execution, the prisoner's right to avail of judicial remedies will be thwarted," it said, adding these 14 days are necessary for the prisoner to "prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs..." and to have a "last and final meeting with his family members".

It said it was the obligation of the jail superintendent to ensure that the convict's family members are informed about the rejection of the mercy petition in time so that they can make travel arrangements in cases where they live at distant places.

Those whose death sentences were commuted are Suresh, Ramji, Bilavendran, Simon, Gnanprakasam, Madiah, Praveen Kumar, Gurmeet Singh, Sonia, Sanjeev, Sundar Singh, Jafar Ali, Magan Lal Berala, Shivu and Jadeswamy.