Whether delayed execution of death penalty is sufficient ground for commuting death sentence? This debate has just started at the national level after Tamilnadu Assembly passed a resolution for commuting death sentence of the killers of Sh. Rajiv Gandhi, former Prime Minister of India. Perarivalan, Santhan and Murugan were awarded death sentence by a TADA court in the year of 1997; while holding them guilty for killing of former Prime Minister of India in 1991 by way of a bomb blast. The killing was associated to LTTE, a terrorist outfit operating from Sri Lanka. The death sentence was confirmed by Hon’ble Supreme Court of India in 1999. Post confirmation of death sentence, the convicts moved to the President for begging pardon under the power vesting with the President under Article 72 of the Constitution of India. However, there was a delay of more than 12 years in deciding the application filed by the accused under Article 72 of the Constitution of India. In the meanwhile, one of the accused done his MCA and even all of them were never accused of any prisoner misconduct during their stay in the prison for nearly 20 years. Our law provides a minimum 14 years of imprisonment for life convicts. Both life imprisonment and death sentence are the maximum punishments, which are available under Indian law; with only one difference that death penalty is given under rarest of rare category. While determining whether the offence falls under rarest of rare category or not; the court has to examine the offender first and then offence itself. Vellore prison authorities fixed date of 9th September 2011 for execution of sentence; this is when this debate sparkled everywhere in India. On 30th August 2011, while showing rarest gesture, Tamilnadu State Assembly passed a unanimous resolution to commune the death sentence of three prisoners. This debate was taken to next level when J&K Chief Minister tweeted through his tweeter handle and asked that what will happen if J&K Assembly also passes a resolution to commute the death sentence awarded to Afzal Guru who has been convicted for attack over the Parliament of India. Afzal Guru is an original resident of J&K and the separatist’s voices in J&K are threatening Government against his execution from many years. He was arrested for attacks in December 2001 and is in jail since then. The debate does not rest here and now Punjab Chief Minister S.Parkash Singh Badal has also stepped into this debate while stating that Punjab Assembly will pass a resolution to commute the death sentence of Devender Pal Singh Bhullar; who was convicted for plotting an attacked over Maninderjit Singh Bitta, wherein 9 persons were killed and many injured. His application of pardon was recently rejected by the President of India. His death sentence was confirmed by the Supreme Court of India in 2002 and his mercy petition was pending since then. Human Rights organizations have been raising questions over their trials since long, but it will be unending debate as the scope of this article is limited to the question as to whether the prolonged procedure will give convict a right to get pardon. This question has been raised before Hon’ble Supreme Court of India many times and there are many dissenting views over the same. There are many landmark judgments of the SC over the subject but the relevant in question presently will be Smt. Triveniben vs State of Gujarat (AIR 1989 SC 1335). In this matter the court showed its deep anguish over prolonged delay in mercy petitions and held that the convict can approach to the court under article 32 for redressal of his grievance if there has been a prolonged delay in execution. It was also held that the only delay which is material for the same is the delay taken by the executive and administration after the judicial process is complete; i.e. when the matter has been finally decided by the Supreme Court. It is well obvious that the court showed its anguish over the delay by executive to execute the sentence. In Rajiv Gandhi Assassination case, the mercy petition remained pending for 12 years, in Parliament Attack matter it is pending since 2005 i.e. 6 years and in case of Devinder Pal Singh Bhullar; it remained pending for 9 years i.e. from 2002 to 2011. In matter Madhu Mehta vs Union of India (AIR 1989 SC 2299), the death sentence of the convict was commuted specifically on the sole ground of delay in deciding the mercy petition. In the instant matter the death sentence was confirmed in 1981 and the mercy petition was dismissed in 1989. The Hon’ble Court found it to be highly unreasonable delay and commuted the sentence. There are more than one instances of the interference by Hon’ble Supreme Court in such cases. Even in matter of Sardar Kehar Singh( AIR 1989 SC 653), the person convicted for assassination of Indira Gandhi, the then Prime Minister of India; in the instant matter the Hon’ble Supreme Court went ahead by holding that the order of the President of India under Article 72 can by reviewed by the Supreme Court under its inherent powers of judicial review. The Hon’ble Court further explained the reason this power of pardon is part of our constitutional scheme. It was observed that, ““... To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of deprivation of life by the action of the State is in most civilized societies regarded seriously and recourse, either under express constitutional provision or through legislative enactment, is provided to the judicial organ. But, fallibility of human judgement being undeniable even in the most trained mind, ... it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinize the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the state.”
So, if we go by the judicial pronouncements, all three matters are fit for commutation of death sentence into life. But is this the only course available with us. The problem here is that why the executive of India is so slow and pathetic in its handling of such serious matters. All three matters have been dragged at length by our politics that these have become political matters now; rather than criminal matters. All accused were guilty of most heinous offences possible against state. They were sent to trial and were convicted. The matters were decided by the Supreme Court of India way back and they have not been awarded punishments which were required to be awarded as per the judicial pronouncements. Now, the matter has taken constitutional as well as political angle. Three regional parties are playing politics to prevent convicts from execution at the name of humanity and human rights. Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Since death penalty takes life and personal liberty of a person, it has to go through tests given under Articles 14, 19 and 21 of the Constitution of India. The matter of Afzal Guru was delayed by central executive deliberately as it was admitted by the Home Minister of India Mr. P.Chidambaram in 2009 that petition has not been sent to the President of India yet. Is this delay justified, or it is a deep politics to disrupt rule of law in India. When highest court of law in India has confirmed the punishment of a convict, can executive sit over it for indefinite time and become hurdle in the administration of justice which executive has to protect. No convict has been hanged to death after 2004; when one Dhananjoy Chatterjee was hanged to death for rape and murder of a girl. All mercy petitions are pending since then and the matters which are decided by the President of India are creating political trouble in India. It is high time when we should learn from our past mistakes and actions. The Executive of India has to take necessary precautionary steps so that sovereignty of India may not be challenged like it is being done now. If death sentence has to continue in India, it should be expedited and all reasonable safeguards under the Article 14, 19 and 21 are to be taken care of. Article 6 of International Covenant on Civil and Political Rights also gives certain safeguards for imposing death penalty, which can be followed as India is also signatory to this. Further, the power of the President of India under Article 72 and the Governor of a State under Article 161 for pardoning should be exercised in a careful and reasonable manner and without any delay. Otherwise these complicated situations will continue to rise when legislations will pass resolutions to try and by pass the powers of judiciary and executive. This scene is a great deterrence to the administration of justice and doctrine of separation of powers which is one of the basic structure of the constitution of India as held in Keshavananda Bharti’s case (AIR 1962 SC 1461) by the Constitutional Bench of the Hon’ble Supreme Court of India.
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