Acountry that retains the death penalty needs constantly to fine-tune its clemency jurisprudence as thesecond best option. The Supreme Court’s latest verdict on death row convicts is a thoughtful exposition of the law in this regard. Commuting the death sentences of 15 convicts to life sentences, a three-judge Bench, headed by Chief Justice P. Sathasivam, has significantly expanded the scope for judicial intervention to save the lives of convicts after the rejection of their mercy petitions. As the scope for judicial review in such cases is limited, the court has sought to protect the rights of condemned prisoners arising from supervening circumstances after their cases have attained judicial finality. The court has laid down fresh rules to humanise the treatment of those facing the gallows, right up to the moment of their execution and even after that. The breadth of this ruling is impressive: it removes all lingering doubts about the rule against undue delay; it overturns the exception carved out in Devendar Pal Singh Bhullar (2013) for offences involving terrorism; it reminds jail authorities of the bar on keeping death row convicts in solitary confinement before the rejection of their mercy pleas; it lists mental illnesses and solitary confinement as new grounds for commutation. It further mandates legal aid for convicts in drafting mercy petitions and exploring judicial remedies.
Apparently taking note of the secret execution of Afzal Guru, the court has crafted a new rule that families of convicts ought to be informed in writing as soon as their mercy petitions are rejected. It bars execution for the next 14 days so that they have the consolation of a final reunion. Speaking with moral clarity, the court has gathered the best of its extant jurisprudence on the subject and added nuggets of humaneness to elevate the existing body of law, as it were, to a higher humanitarian plane. That those who benefit from this judgment are guilty of heinous offences should not cast a shadow on the moral foundation on which the verdict stands. The principle that is reaffirmed is that be they terrorists or murderers, their fundamental rights are not extinguished upon conviction. The message that the executive should deal expeditiously with mercy petitions should, however, not propel authorities to the other extreme — making hasty decisions without considering relevant factors just to quicken the process. Constitutional functionaries face a dilemma in considering clemency for convicts who have caused multiple deaths or displayed great cruelty. Judicial guidance will humanise the process, but the real solution lies in abolishing the cruel and inhuman penalty of death.