Clear confusion

Some of the recent cases in the higher courts bring into sharp focus the dilemmas on the death penalty.

in New Delhi

ON October 10, the Supreme Court Bench of Justices Aftab Alam and C.K. Prasad stayed the execution of Ajmal Kasab, the lone surviving assailant in the November 2008 Mumbai terror attack, by admitting his appeal against the death sentence awarded to him by the Bombay High Court.

The Bench wondered whether Kasab deserved this legal right to appeal, which convicts are normally entitled to. The Bench, however, agreed with counsel that due process must be followed whatever the magnitude of the offence committed.

Ironically, convicts whose death sentences have been confirmed by the Supreme Court and whose mercy petitions have been rejected by the President have also raised the question of due process. Five such convicts Devender Pal Singh Bhullar, Mahendra Nath Das, Murugan, Santhan and Perarivalan (Arivu) have legally challenged the rejection of their mercy petitions and secured stays of their executions. The challenge has been on various grounds, including inordinate delay, non-application of mind and non-consideration of mitigating material by the President.

Murugan, Santhan and Arivu, sentenced to death in the Rajiv Gandhi assassination case, have sought relief from the Madras High Court. The three had filed their mercy petitions in 2000, but the President's decision to reject the petitions was announced only on August 11, 2011. The Supreme Court is set to hear a plea to transfer these petitions to itself on the grounds that a fair hearing in Chennai is not possible because of the surcharged political atmosphere in the State against their hanging.

A trial court under the Terrorist and Disruptive Activities (Prevention) Act (TADA, which has since lapsed) sentenced Bhullar to death for his role in the September 10, 1993, blast in Delhi. Nine security personnel died in this incident, while the then Youth Congress president, Maninderjit Singh Bhitta, suffered serious injuries. A three-judge Bench of the Supreme Court upheld Bhullar's death penalty by a 2: 1 split verdict and dismissed his curative petition in March 2003. He filed his mercy petition in 2003. The President rejected his petition on May 25, 2011. Bhullar has challenged the rejection in the Supreme Court.

While the Tamil Nadu Assembly passed a resolution on August 30 appealing to the President to commute the death sentences of the three convicts in the Rajiv Gandhi assassination case in deference to the Tamils' sentiments, the sentiment within Punjab's political parties, the Akali Dal and the Congress, has been against carrying out the execution of Bhullar.

The absence of a political lobby against his execution seems to have caused a setback to Mahendra Nath Das' legal battle against the rejection of his mercy petition. Das had been held in connection with a murder case, but was out on bail. He committed a second murder after jumping bail. In the second case, he was convicted and sentenced to death, while in the first he had been sentenced to life imprisonment. The President rejected his mercy petition, filed in 2001, on May 8 this year.

On September 8, Justices I.A. Ansari and H. Baruah dismissed his mother Kusumbala Tarun Das' writ petition challenging the rejection of Das' mercy petition on the grounds that she did not have the locus standi to file the petition on her son's behalf.

The dismissal of the petition on what was seen as a flimsy, technical ground dismayed many. The Supreme Court had granted convicts on death row the right to approach courts on the grounds of inordinate delay in disposing of their mercy petitions in Triveniben vs State of Gujarat (1989). In that case the mother of the convict had sought relief for her son. But the Gauhati High Court rejected this contention in Das' case because, it said, in Triveniben the question of locus standi might not have been raised against the petitioner. Das has himself filed a petition in the High Court with the help of concerned lawyers to cure this procedural defect, and has secured an extension of the stay on his execution.

When the High Court heard Kusumbala's petition, Additional Solicitor General R. Sharma had explained the delay in deciding Das' mercy petition. Das' repeat murders, the Centre argued before the High Court, made commutation of his death sentence unwarranted.

The Supreme Court held in the Triveniben case that the inordinate delay in rejecting the mercy petition of a convict must be counted from the day the Supreme Court finally upholds the death sentence. Although the court did not prescribe any time limit, the crossing of which by the executive would constitute inordinate delay, it held that if the executive deliberately and arbitrarily delayed a decision on the mercy petition that would be unjustified.

The Supreme Court upheld Das' death sentence on May 14, 1999. He addressed his first mercy petition to the Governor of Assam under Article 161 of the Constitution. The Governor rejected it on April 17, 2000. In June 2001, the Union Ministry of Home Affairs (MHA) submitted his mercy petition to the President. In July 2004, the President's secretariat returned the file for re-examination by the Home Ministry. The Centre told the High Court that his mercy petition remained with President A.P.J. Abdul Kalam's secretariat for about three years.

The Constitution does not prescribe any particular period for the President to take a decision in the matter. Whatever could have been done by the MHA, as regards taking of a decision on the mercy petition, was done and the file was submitted at the earliest to the President's secretariat, but the matter remained with the President's secretariat, the High Court quoted Sharma as saying in its judgment.

In April 2005, the Centre reiterated its recommendation to the President to reject Das' mercy petition. On September 27, 2010, the Home Ministry called back the file and after examining the matter, resubmitted it to the President, for the third time, on October 19, 2010, recommending rejection of the mercy petition. It can be inferred that the Centre held the President's secretariat again responsible for the delay of five years between April 2005 and September 27, 2010.

The Centre, however, added: There are several factors required to be taken into account in considering a mercy petition. There can be no uniform period for disposal of mercy petition. A number of factors enter into consideration depending on the nature of a case and the nature of the issues involved. It may also depend on the number of petitions which are submitted to, and required to be considered by, the government.

Erroneous argument

The Centre has put forward a different but equally erroneous argument before the Supreme Court in the Bhullar case. In its affidavit filed in October, the Centre contended that pendency of a mercy petition could not be called an act of cruelty or an act that prolonged the suffering of the prisoner. Pendency, it suggested, had given the prisoner a lease of life, as its rejection would have meant the prisoner's immediate hanging.The Centre's stand before the Supreme Court is inconsistent with the court's previous rulings. The court has held in many cases that speedy trial is a part of one's fundamental right to life and liberty, and this principle is no less important for the disposal of a mercy petition.

In one case, the Supreme Court held that it did not find the reasons cited sufficient to justify the long delay in disposing of the mercy petition. The convict has suffered mental agony of living under the shadow of death for long, far too long. He should not suffer that agony any longer, the court had said in this case in which there was a delay of over eight years in disposing of the convict's mercy petition by the President.

The Ministry of Home Affairs received Bhullar's mercy petition on January 24, 2003. On July 8, 2005, the Ministry forwarded it to the President with a recommendation, which remains under wraps. On April 24, 2011, the Home Ministry withdrew its recommendation from the President for a review and on May 10, 2011, resubmitted the petition to the President.

The inordinate delay in considering mercy petitions and the incarceration of the convicts during the period constituting an unjustified punishment are no doubt relevant factors.

Readiness to introspect

But more relevant would be the Supreme Court's readiness to introspect. On account of the court's judgments confirming the death penalty in several cases, the number of mercy petitions awaiting the executive's clemency has kept on increasing, further adding to the delay in deciding them.

As on September 20, there were 19 mercy petitions awaiting a decision by the President, many of them having been resubmitted after reconsideration by the Home Ministry. President Pratibha Patil has commuted death sentences in 10 cases, benefiting 18 convicts, clearly suggesting that there were enough mitigating circumstances in these cases, which she had considered on the advice of the Home Ministry.

Three recent Supreme Court judgments show that the time has come for the court to declare a moratorium on the imposition of the death penalty until it is able to provide a precise definition for the rarest-of-rare doctrine it had laid down in the Bachan Singh case in 1980.

In Ajitsingh Harnamsingh Gujral vs State of Maharashtra, the Supreme Court found that the convict had planned the diabolical and gruesome murder of his wife and three children in a dastardly manner because of a domestic dispute. The judgment delivered by Justices Markandey Katju (who has since retired from the court) and Chandramauli Kr. Prasad on September 13 erred perhaps in applying the rarest-of-rare doctrine.

The Bench admitted in this case that the expression rarest of the rare cases could not be defined with complete exactitude. Yet, the Bench justified the imposition of the death penalty, ignoring the mitigating factors in the convict's favour, namely, his propensity for rehabilitation, and whether he would continue to be a menace to society if his death sentence was commuted.

In Bachan Singh (1980), the court's Constitution Bench, while upholding the constitutionality of the death penalty, held as follows: A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed (emphasis added).

The Supreme Court Bench comprising Justices S.B. Sinha and Cyriac Joseph emphasised the last part of this second sentence in Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra on May 13, 2009. In this case, the appellant had killed his victim, a young boy, whom he had kidnapped for ransom. Yet, the Bench commuted his death sentence to rigorous imprisonment for life as, in its view, the mitigating factors in the case were sufficient to place it out of the rarest of rare category.

The court deplored the fact that the extremely uneven application of Bachan Singh had given rise to a state of uncertainty in capital sentencing law, which clearly fell foul of constitutional due process and the equality principle.

It expressed the belief that socio-economic backwardness of the convict might not dilute guilt but amount to mitigating circumstances and sustain the ability to reform. The court noted with dismay that courts, including the Supreme Court, did not consider any mitigating circumstance relating to the criminal at the sentencing stage in most cases after Bachan Singh. The court had also held in this case that the state must prove that reform and rehabilitation of the criminal would not be possible, as a precondition before the court awarded a death sentence.

In Ajitsingh Harnamsingh Gujral, however, the Bench simply substituted its opinion that the appellant could not be reformed with the requirement that the state ought to have provided evidence to that effect. The Bench did not consider Bariyar as a precedent to be cited at all.

Two Supreme Court judgments after this case, however, sought to apply the law and the precedent correctly. In Rajesh Kumar vs State through Government of NCT of Delhi, the Bench of Justices D.K. Jain and Asok Kumar Ganguly, on September 28, commuted to life imprisonment the death sentence imposed on the appellant by the Delhi High Court. It held that the cruel manner in which the murder was committed could not be the guiding factor in favour of the death sentence. The appellant had murdered two young children to take revenge on their father, who had refused to help him financially.

In Paragraph 89 of this judgment, the Bench held that the state failed to provide evidence that the appellant was a continuing threat to society or that he was beyond reform and rehabilitation.

In the second judgment, delivered on September 30, in Sham @ Kishor Bhaskarrao Matkari vs State of Maharashtra, the Bench of Justices P. Sathasivam and B.S. Chauhan set aside the award of death penalty by the Bombay High Court.

The Bench held that though the appellant caused the deaths of his brother, his sister-in-law and their child, owing to land dispute, he had no pre-plan to commit the murders. The Bench justified the commutation of the sentence on the grounds that at the time of the incident the convict was 28 years old and jobless. Besides, the Bench considered the facts that he was in jail for more than 10 years, with about five years alone in the death cell, as mitigating factors. Therefore, the Bench concluded that it could not be said that the appellant-accused would be a menace to society.

It is apparent that the commutation of the death sentence is a question of chance for the convict, depending on which judges of the Supreme Court hear the appeal and whether they apply correctly the rarest-of-rare doctrine. If the court has to uphold the rule of law and the right to equality of convicts, a moratorium on the imposition of the death penalty until the court can ensure consistency in the application of the law and the precedents will be in order.

In any case, the Supreme Court may have to revisit some of these issues even as it gets set to hear Kasab's appeal from January 31 next year.