Inordinate and inexplicable delay by government in deciding mercy plea of death row convicts can be a ground for commuting their sentence, the Supreme Court ruled today while granting life to 15 condemned prisoners including four aides of forest brigand Veerappan.
In a landmark judgement, the court held that prolonging execution of death sentence has a "dehumanizing effect" on condemned prisoners who have to face the "agony" of waiting for years under the shadow of death during the pendency of their mercy plea.
Today's verdict has paved the way for commutation of death sentences of other death row inmates including the convicts in the Rajiv Gandhi assassination case-- Santhan, Murugan and Perarivalan alias Arivu--who have also sought commutation of their sentence on the ground that their mercy plea was rejected 11 years after it was moved.
A bench headed by Chief Justice P Sathasivam also framed a slew of guidelines for dealing with mercy petitions by government authorities and for the execution of death sentence. It also held that death sentence can be commuted to life if a prisoner is suffering from mental illness.
"Since it is well established that Article 21 of the Constitution (Right to Life) does not end with the pronouncement of sentence but extends to the stage of execution of that sentence, as already asserted, prolonged delay in execution of sentence of death has a dehumanizing effect on the accused. Delay caused by circumstances beyond the prisoners’ control mandates commutation of death sentence," the bench said.
Holding that delay in deciding mercy plea and to keep death-row convict waiting for their fate as violation of fundamental rights, the bench, also comprising justices Ranjan Gogoi and Shiva Kirti Singh, said that gravity of offence cannot be a ground for delay and all condemned prisoners whether convicted under IPC or anti-terror law are entitled for commutation.
"Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death.
"Indisputably, this Court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonizing delay caused to the convict only on the basis of the gravity of the crime," the bench said.
According to Home Ministry figures, the Centre takes on average 8-9 years to dispose of the mercy petition and in one case it took almost 14 years. Some of the death convicts have approached courts after their mercy pleas were rejected by the President.
Holding that power of the President and Governors is not matter of "grace" or "privilege" but a constitutional duty, the bench said it is "incumbent" on the authorities to dispose of mercy plea expeditiously.
Refusing to set any time frame for the Governor and the President to decide mercy plea, the apex court expressed hope that these petitions be disposed of at a much faster pace than what is adopted now.
"We sincerely hope and believe that the mercy petitions under Article 72/161 can be disposed of at a much faster pace than what is adopted now, if the due procedure prescribed by law is followed in verbatim.
"Although, no time frame can be set for the President for disposal of the mercy petition but we can certainly request the concerned Ministry to follow its own rules rigorously which can reduce, to a large extent, the delay caused," it said.
In view of huge uproar made by the Human Rights activists on not informing the family members of Parliament Attack case convict Mohamad Afzal Guru before he was hanged, the apex court also ruled that family members of a death convict must be informed about the dismissal of mercy plea and they be allowed to meet with the condemned prisoner before execution.
"While some prison manuals provide for a final meeting between a condemned prisoner and his family immediately prior to execution, many manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities. It is therefore, necessary for prison authorities to facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution," it said.
It said that death convicts must be provided legal aid inside jail so that he can seek commutation of his sentence on various ground in court and regular mental health evaluation be done on them.
The bench said it is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution so that the prisoner can mentally prepared himself for the punishment and to meet his family members.
It said that solitary or single cell confinement prior to rejection of the mercy petition is unconstitutional.
The apex court overruled its two judge verdict in Khalistani terrorist Devinderpal Singh Bhullar's case in which it had held that delay in deciding mercy plea cannot be a ground for commutation of death sentence and held prolonging the execution of death penalty "certainly attribute to torture".
"Therefore, in the light of the aforesaid elaborate discussion, we are of the cogent view 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," it said.
"Accordingly, if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself," it said.
Expressing displeasure over the delay in disposing of mercy plea in recent years, the bench noted until 1980, the petitions were decided in minimum of 15 days and in maximum of 10-11 months and from 1980 to 1988, the time taken in disposal was gradually increased to an average of 4 years.
It said that after apex court verdict, the government expedited the process and from 1989 to 1997 the average time taken for deciding the mercy petitions was brought down to an average of 5 months.
"...But unfortunately, now the history seems to be repeating itself as now the delay of maximum 12 years is seen in disposing of the mercy petitions," it said.
The bench also clarified that its verdict pertaining to commutation of death sentence on ground of delay and mental condition of condemned prisoners would apply irrespective of the gravity and nature of offences of the convict.
"We are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under TADA. The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive," it said.
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