Unconscionable delays

Capital punishment is the harshest punishment awarded by law. As it is considered too abhorrent,  many countries abolished it. But some of them again revived it. However, there have been great intellectuals like J S Mill who strongly supported it for maintaining the rule of law and saving the society from slipping into anarchy. But there is a group of human rights activists which has been vociferously campaigning for its abolition.

In India, death sentence is awarded in the ‘rarest of rare’ cases as laid down by the Supreme Court. However, this purely legal provision has been enmeshed in the hideous maze of vote-bank politics and so the mercy petitions keep hanging fire before the president for years together.

However, after much brouhaha in the public over the inordinate delay in the execution of Afzal Guru, a convict in the Parliament attack case, the Union home ministry has finally recommended to the president that the mercy petition filed on behalf of Afzal Guru be rejected. President Pratibha Patil has also rejected the mercy petitions of three members of the banned LTTE convicted in the assassination of former prime minister Rajiv Gandhi.

Recently she also rejected the mercy plea of Devinder Singh Bhullar. All of a sudden, the mercy petitions are being disposed of on a fast-track mode. The delay in disposing of mercy petitions makes the punishment irrelevant and questionable. Initially, the Union government took the facetious plea that these mercy petitions would be disposed of in a chronological order which cannot be jumped but in a reply to a question in the Rajya Sabha recently, the government admitted that there was no such legal requirement.

The president, under Article 72 (1)(c), is empowered to grant pardon ‘in all cases where the sentence is a sentence of death.’ A pardon, being an act of grace, cannot be claimed as a matter of right.

If granted, it not only removes the punishment but also the taint of the offence. Chief Justice Taft of the US Supreme Court, in Grossman, Exp., explained the reason why the executive is given this power to grant pardons and reprieves, “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.

The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases.”

Extraordinary power
Thus, it is clear that the executive has been given this extraordinary power so that the implementation of the court’s order does not become a problem for the state. The Supreme Court, in Kehar Singh v. Union of India (1988) held that the scope of Article 72 is judicially determinable but held, “We are of the view that the president is entitled to go into the merits of the case notwithstanding that it has been judicially conducted by the consideration given to it by this court.”

 However, genuine problem in carrying out the execution is one thing and playing politics with it is another. Now Kashmiri separatist Syed Geelani has warned the government of serious consequences if Afzal Guru is executed. The procrastination of the government has made the case more difficult and sensitive.

Afzal was to be hanged on October 20, 2005 but his wife moved the mercy petition before the president. Undue delay in the execution can be a ground for commutation of capital punishment into life imprisonment.

A division bench of the Supreme Court headed by justice O Chinappa Reddy, held in Batheeswaran’s case that a delay of two years in the execution will lead to commutation into life imprisonment. However, another division bench headed by Chief Justice Y V Chandrachud, a few months later, held in Sher Singh case that the commutation cannot be automatic; it will depend on circumstances why it got delayed. Subsequently, a constitution bench of seven judges in Triveni Behn v.

Gujarat held that the law laid down in Sher Singh is correct. However, it added a rider that that if there is a delay of two years or more due to executive reasons, it can be a ground for commutation. So, in all likelihood, some one will definitely move the court for commutation of the death sentence awarded to Rajiv killers and also for Afzal Guru if his petition is finally rejected by the president.

The question is why, after all, there was such an inordinate delay. The rule of law must be enforced ruthlessly with an iron hand. Secondly, there is no conclusive definition of the ‘rarest of rare’. In fact, there has been an increase in awarding the death sentence after the Supreme Court laid down this condition.

Moreover, the government has no policy in this regard. Devinder Singh Bhullar was convicted in 2001 for terrorist acts. But the bench of three judges of the Supreme Court was divided not only over the amount of sentence but also on the issue of his guilt. While two judges felt that it was the ‘rarest of rare’ crime, the third judge acquitted him. There is an opinion that if there is a fractured judgment, the convict should be given the benefit of doubt and his death sentence should be commuted.