By India Resists,
New Delhi: Civil and Democratic rights organizations have welcomed the Supreme Court judgment which has commuted the death sentence of 15 persons, including one female, to life sentence. Terming it a landmark judgment, the groups believe it to be a step forward in the abolition of the death sentence in India. Given below are the statements by JTSA, PUCL and PUDR. Summary and Text of the Judgment are also given at the end.
Statement by Jamia Teachers Solidarity Association (JTSA)
In what is surely a landmark judgement, a three-judge bench of the Supreme Court of India has commuted the death sentence of 15 persons, including one female, to life sentence. With this judgement, the real and repugnant possibility of 15 executions in the near future has been allayed. Jamia Teachers’ Solidarity Association (JTSA) welcomes the Supreme Court judgement (Shatrughan Chauan & Anr vs Union of India and Ors [W.P.(Criminal) No. 55 of 2013 decided on 21 January, 2014),which has held that inordinate delay in deciding mercy petitions are fair ground for commuting capital punishment to life sentence. JTSA salutes the persistent efforts of lawyers Yug Mohit Chaudhri, Sidharth Sharma and all other lawyers who appeared in the case, as well as groups like Peoples’ Union for Democratic Rights (PUDR) and Commonwealth Human Rights Initiative (CHRI) who were petitioners and interveners in the case.
The court has held that “undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence.” Significantly, the SC has also overruled the ASG’s arguments that the those charged under Terror laws (such as Devender Pal Singh Bhullar under TADA) could not be the recipient of the Court’s sympathy even on the ground of delay in disposal of mercy petition. It instead averred that it was not the gravity of crime or its consequences, but the delay alone, which could be a relevant factor in deciding such petitions in Article 32.
To quote the SC itself, “Mercy jurisprudence is a part of evolving standard of decency, which is the hallmark of the society”. While certainly this judgement will be a milestone in this evolution, the real victory will be the abolition of the capital punishment.
“Remember”, says the SC, “retribution has no Constitutional value in our largest democratic country.” To this one may add that the maintenance of an apparatus of execution should have no place in a democracy either.
Statement by People’s Union of Civil Liberties (PUCL)
PUCL welcomes the landmark ruling of the Supreme Court today (21st January, 2014) authoritatively holding that inordinate delay in considering mercy or commutation petitions of death row convicts by the President of India / Governors will form a legal ground for commutation of the death sentences. The SCs judgment is historic for 2 other reasons: the apex court has held that apart from delay, the mental health condition of the convict, including schizophrenia and mental illness, as also solitary confinement are grounds warranting commutation.
Very significantly the SC has reversed the ruling of 12th April, 2013 of Justices Singhvi and Mukhopadhyaya in `Devinder Singh Bhullar’s’ case which made an invidious distinction by distinguishing terrorist crimes as being different from other crimes for which the constitutional remedies and also delay as ground for commutation will not apply. The Supreme Court has overruled this proposition holding that any person on death row, irrespective of whether it is mass murders or terrorist crimes, can equally appeal to the Supreme Court on grounds of delay.
In a noteworthy and a momentous way the SC, taking note of the controversy over the surreptitious, furtive and unconscionable manner in which Afzal Guru was hanged without informing his wife and family, has now held that the death row convict and his close family should be informed at least 14 days before the execution date about rejection of mercy petition so that he/they can take recourse to legal proceedings and also so that the prisoner can meet his wife, family and friends before the execution, partake of food he likes and be entitled to humane treatment. The court has also held that condemned prisoners are entitled to free legal aid to help draft mercy petitions and legally challenge its rejection. Post mortem of executed prisoners has also now been mandated to ascertain the manner in which hanging caused the death.
This ruling will give a new lease of life to the 4 Veerappan case death row prisoners as also others, and be of use to others including the 3 persons convicted in Rajiv Gandhi assassination case whose mercy petitions were pending for 11 years before being rejected.
The SC’s ruling is a momentous ruling for asserting that human values and humane justice should ultimately be the cornerstones of modern, constitutional India. We hope this will mark a significant step towards eventually abolishing death penalty altogether from our law books.
Statement by People’s Union for Democratic Rights (PUDR)
People’s Union for Democratic Rights (PUDR) welcomes the judgement of the Supreme Court delivered today commuting to life the death sentences awarded to 15 convicts lodged in different jails in the country. In doing so the Supreme Court has upheld the spirit of the Constitution and the values of humanity and respect for human life enshrined therein. This judgement was read out in the court today by Justice Sathashivam, CJI, accompanied by Justice R. Gogoi and Justice Shiva Kirti Singh in response to a petition by the People’s Union for Democratic Rights, Delhi (PUDR) and 15 individual petitions of the convicts.
In particular the Court has categorically held that retribution has no space in the constitutional scheme. Those convicted to death need to be treated as human beings and basic rights cannot be denied to them. It has held solitary or single cell confinement as torture and that till the rejection of mercy petition death convicts cannot be confined in this manner. Access to legal counsel has to be ensured for all such convicts at every stage when the convicts are lodged in jail.
Recognising that most of those convicted to death are extremely poor people who do not have access to support from outside the jail, and that mercy petitions comprise a half page written by the the jail staff, the judgement has ruled that copies of all court papers need to be provided to death convicts within a week of confirmation of their sentence and legal aid be provided to enable proper drafting of mercy petitions.
The court has held that mercy jurisdiction is not an act of grace or favour but a constitutional duty and responsibility to be discharged scrupulously in accordance with constitutional values. Noting the procedural lapses in this regard the court has ruled that all documents concerning the prisoners need to be placed before the President at one go and the President take the decision within reasonable time to prevent unnecessary torture being afflicted.
The court has also frowned upon hurried or surreptitious manner of executions where convicts and their families are not informed about the rejection of mercy, convicts are not provided time to access to the judiciary after rejection of mercy, and families are not allowed a last meeting with the convict. This was exactly the manner in which Kasab and Afzal were executed over a year ago The judgement therefore states that information of rejection be provided in writing to the prisoners and their families; a minimum period of 14 days before execution can be carried out; and that jail authorities facilitate the meeting with the family. This the judgement rules is necessary since it is “intrinsic to humanity and justice.”
The Court also noted with concern that execution had been ordered for convicts with mental illness. Commuting such sentences, the court ruled regular evaluation of mental health of such convicts, mandatory heath report of physical and mental health after the rejection of mercy and provision of a medical board where the jail superintendent is not satisfied with the health of the convict.
The judgement recognizes that the death penalty is a cruel and barbaric form of punishment. It has therefore ordered that steps be taken to record the agony suffered by the convict during execution through a mandatory post mortem examination of the body.
PUDR once again welcomes the SC judgement as a step in the correct direction so that punishments inflicted on the accused are in consonance with the developing standards of decency in social life.
Reproduced here is the summary of the Court’s guidelines prepared by Venkatesh Nayak of CHRI:
1) Death row prisoners may not be kept in solitary confinement during the period of pendency of their clemency petitions. This arises out of the fundamental right to life protected under Article 21 of the Constitution;
2) Prisoners sentenced to death have the right to legal aid for the purpose of filing appeals against the sentence and also for submitting clemency petitions. This also flows from Article 21;
3) Prison authorities must supply copies of all relevant court papers to prisoners sentenced to death within a week of the sentencing to enable them to file appeals or clemency petitions. This right also flows from Article 21;
4) The Union Ministry of Home Affairs has a duty to ensure that all clemency petitions addressed to the President of India are processed forthwith and submitted along with all supportive documents and also send reminders to the President’s office in case of delays in disposing the petitions;
5) Death row petitioners are entitled to receive a copy of the rejection order from the office of the Governor or the President whichever the case may be;
6) Notice of a minimum period of 14 days must be given prior to execution of the death sentence after the mercy petition is rejected. Readers will remember that two prisoners were executed in undue haste recently soon after their mercy petitions were rejected. Unfortunately, the Apex Court has given only psychological reasons for giving this notice. Legally, as the decision of rejection of a clemency petition by the President or the Governor is amenable to judicial review on limited grounds of political bias or lack of due application of mind, the notice period must be adequately long to allow the prisoner on death row to mount a challenge to the decirion of rejection in the appropriate court;
7) The mental health condition of prisoners on death row must be evaluated on a regular basis. Even if a clemency petition is rejected the jail authorities must satisfy themselves about the mental physical condition of the death row convict. If the Jail Superintendent finds the prisoner unfit the execution must be stopped and the prisoner must be produced before a medical Board for examination;
8) Families of prisoners whose clemency petitions are rejected must be permitted to meet their families and friends before the execution. Readers will remember that in at least one case last year the prisoner was executed hastily without permitting a meeting with his family members and friends.
9) As hanging as a method of execution is not fool proof and may cause immense pain and suffering to the prisoner being hanged, post mortem of all executed prisoner is now made compulsory. Such PM reports will indicate whether the prisoner died instantly due to hanging or died slowly due to strangulation.