The agony of awaiting death

On January 21, 2014 the Supreme Court of India pronounced a momentous judgment relieving the agony of convicts in India sentenced to death awaiting their execution for prolonged periods of time. A

bench of Chief Justice P. Sathasivam and Justice R. Gogoi and Justice Shiva Kirti Singh held that inordinate delay in deciding a petition of a convict sentenced to death by the President can be torture and inhumane punishment to the convict. In such circumstances, if the convict approaches the Court, the Court will hold that his fundamental right to protection of life and personal liberty under Article 21 of the Constitution is violated and the Court will commute his sentence to life imprisonment.

The Court has held that a convict sentenced to death has a Constitutional right to petition the President for relief against his sentence, and the consideration of his petition is not an act of grace or mercy by the President but a necessary relief provided by the Constitution, and the Court will judicially review the decision to execute the convict after inordinate delay.

In the 15 cases of convicts facing imminent hanging after the rejection of their petitions by the President, the Court found that there was inexplicable delay, from seven to 12 years, in deciding their petitions by the President and communicating the decision to the convicts. The Court held that keeping such a convict in suspense while his petition was not decided by the President for many years was an agony for him which creates adverse physical conditions and psychological stresses on him and was a trauma not only on him but also his family awaiting his execution. The Court has also held that a Court cannot excuse the agonising delay caused to the convict merely because of the gravity of the crime for which the death penalty was imposed on him. With this judgment, any uncertainty in the law on execution of death sentence is now cleared.

This is not for the first time that the Supreme Court has found that a convict sentenced to death has a right to be treated humanely and not put to the agony of awaiting his execution. The Court had been in fact a pioneer in deciding cases of delay in execution of a death sentence. As early as 1974, Justice Krishna Iyer had written of the “brooding horror of haunting the prisoner in the condemned cell for years.” In 1983 and 1989, the Court delivered judgments which held that a prolonged delay in carrying out the death sentence would be inhumane and degrading treatment to the convict. These Supreme Court judgments were cited with approval by the Privy Council in 1994. Despite these pronouncements of the Supreme Court, the President of India and the government kept the petitions of death row convicts in suspense for prolonged periods of time, sometimes as much as 15 years in disregard of the plight of the convict and his family.

Uncertainty

The law was brought into uncertainty in 2012, when the Supreme Court was moved to commute the death sentence on Devinder Pal Singh Bhullar who had been kept in suspense for seven years without a decision on his petition to the President. After a prolonged hearing in which the Court called for the records of all petitions pending consideration by the President, a bench of two judges (Justice G.S. Singhvi and S.J. Mukhopadhaya) held that as Bhullar was convicted under the Terrorist and Disruptive Activities (Prevention) Act, delay in his execution was irrelevant and refused to commute his sentence to life imprisonment. Bhullar was to be executed after pronouncing the judgment in his case on April 12, 2013 but because of his physical and mental condition the execution has been postponed. Fortunately for Bhullar in the meantime the present larger bench of three judges was called to consider the correctness of the Bhullar judgment in the case of the 15 convicts due to be executed after an inordinate delay of many years.

The larger bench of the Supreme Court has now differed from the view taken in Bhullar’s case and held that the gravity of the crime was irrelevant in considering the commutation of the sentence as this is always considered by the convicting Court sentencing him to death.

While the judgment in Bhullar’s case was reconsidered by the Supreme Court by a larger bench to be wrong, the case of Afzal Guru could not be considered by the Court as he had been executed by then. If ever an execution of a death convict was carried out in the most inhumane way it was that of Afzal Guru who was convicted and sentenced to death for the crime of attacking Parliament. Afzal Guru was hanged on February 9, 2013 over seven years after the Supreme Court’s pronouncement of the death sentence on him on August 4, 2005 and over six years after his clemency petition was made to the President of India on November 8, 2006. During this period, he and his family remained in a day-to-day agonising suspense. Apart from this delay, the rejection of his petition by the President was kept a secret and deliberately not communicated to his family, lest it become the subject of judicial consideration as had been done in other cases of delayed execution. Within a few days after the rejection of his mercy petition, Afzal Guru was hanged in morbid secrecy without informing his family and his body was buried in equal secrecy in the confines of Tihar Jail in New Delhi.

The disposal of Afzal Guru’s petition to the President had become a political matter, with the Bharatiya Janata Party unseemingly demanding his execution and making it an issue in the elections, and with the government for its own political considerations not deciding on the petition. In fact, between 2006 to 2008 the then Home Minister deliberately instructed the government of Delhi to delay responding to the file on Afzal Guru sent to it. In 2008, in one of the most pathetic statements revealing his mental distress, Afzal Guru during his incarceration pending his mercy petition said in an interview: “I really wish L.K. Advani becomes India’s next PM as he is the only one who can take a decision and hang me. At least my pain and daily suffering will ease then.”

Reconsidering its legality

Though the Court in its present judgment has not expressly referred to the inhumane execution of Afzal Guru, during the hearing as amicus curiae I had drawn the Court’s attention to the case of Afzal Guru. The Court was therefore conscious of the manner in which a convict can be secretly executed without giving him a right to approach the Court after the rejection of his mercy petition and without even informing his family. The Supreme Court in the present case has therefore held that there should be a minimum period of 14 days between the receipt of a written communication rejecting the mercy petition by the convict and the scheduled date of execution. Such a period would enable the prisoner to have a last and final meeting with his family members and permit him to avail of a judicial remedy if necessary against the manner of his execution. The Court has also held that a convict cannot be subjected to solitary confinement during the period his petition was being considered by the government and no convict can be executed if he was suffering from a mental illness like schizophrenia.

Overall, the judgment of the Supreme Court is a landmark decision in cases of carrying out of the death penalty. It is in keeping with the judgments in other courts in the world which have held that trifling with the carrying out of a death sentence is agonising torture for the prisoner which a court would not permit. The death penalty itself has been abolished in 140 countries as a cruel punishment as against 58 countries which retain it. India has retained it with the dubious and unpredictable formula evolved by the Supreme Court of imposing it in “the rarest of rare cases.” At some stage, the Supreme Court may have to reconsider the legality of the death penalty itself. In the meantime, it is some consolation that the Court has now firmly declared the illegality of the practice in India of execution of death penalty after prolonged agonising suspense to the convict and his family.

(T.R. Andhyarujina is a senior advocate of the Supreme Court and former Solicitor General of India.)

A convict sentenced to death has a constitutional right to petition the President for relief against his sentence, and the consideration of his petition is not an act of grace or mercy by the President but a necessary relief provided by the Constitution