Life after death

ON February 18, a three-judge Bench of the Supreme Court comprising Chief Justice of India P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh commuted the death sentences of Murugan, Santhan and Perarivalan, convicts in the Rajiv Gandhi assassination case, to life imprisonment on the grounds of inordinate and undue delay in disposing of their mercy petitions.

In Indian jurisprudence, a convict is sentenced to death if the offence falls under the “rarest of rare” category. After the Supreme Court confirms the death sentence, a convict is entitled to submit a mercy petition to the Governor or/and the President pleading for commutation of the sentence.

Until the Governor or/and the President decide on the mercy petition, the convict cannot be executed and has to be under incarceration. As this period of incarceration is in addition to the death sentence, its legitimacy has always been problematic because the courts neither envisage nor impose it. Therefore, such incarceration makes the punishment excessive. A convict, therefore, is entitled to expeditious consideration of his mercy petition by the executive on the basis of all relevant factors. When there is an inordinate delay in this, he complains that the executive is subjecting him to an additional period of incarceration, which is not sanctioned by the law or the courts.

The Supreme Court has thus ruled that inordinate delay in disposing of mercy petitions forms legitimate grounds for the commutation of the death sentence as there cannot be dual punishment for the same offence, that is, execution and prolonged incarceration before that.

Murugan, Santhan and Perarivalan first filed their writ petitions in the Madras High Court against the delay in disposing of their mercy petitions. The Supreme Court got these petitions transferred to itself under Article 139A of the Constitution. The court accepted the prayer of the three convicts for relief from the death sentence on the grounds that undue, inordinate and unreasonable delay in the execution of their death sentences amounted to torture and therefore violated Article 21 of the Constitution, which guaranteed them the right to life and liberty.

It was only on January 21, in the case of Shatrughan Chauhan vs Union of India , that the court upheld a similar right in the case of 15 death-row convicts and, to ensure justice and fairness, laid down guidelines to be followed by the government while deciding mercy petitions and when executing prisoners. The verdict in Shatrughan Chauhan , however, could not automatically apply to other similar cases because the court held that whether the delay was undue or unreasonable must be appreciated on the basis of the facts of individual cases and no exhaustive guidelines could be framed for the purpose.

The two principles laid down by the court to determine the nature of the delay are that it must be inordinate and that it must not be caused at the instance of the accused. The court found that the three convicts’ plea for commutation complied with both these principles.

Some facts

The mercy petitions were filed before the Governor of Tamil Nadu on October 17, 1999, and the Governor rejected the same on October 27, 1999. On November 25, 1999, the Madras High Court set aside the Governor’s rejection and directed that the petitions be reconsidered after consulting the Council of Ministers, something that had not been done earlier. On April 25, 2000, the Governor properly rejected the mercy petitions.

Consequently, the mercy petitions were forwarded to the President on April 26, 2000, for consideration under Article 72 of the Constitution. The President rejected these petitions only on August 12, 2011. The court noted the fact that the three prisoners had been lodged in the Central Prison at Vellore in Tamil Nadu since 1991. The government contended that the delay caused was not at the instance of the head of the executive and was not unreasonable. Secondly, it argued that the delay did not have a dehumanising effect on the convicts, which would have made the delay unreasonable and undue.

Attorney General G.E. Vahanvati admitted to the court that the mercy petition file had been lying in the drawer of some officer of the Ministry of Home Affairs for five years and eight months since 2000. This admission was enough for the court to conclude that the initial delay was not caused at the instance of the petitioners. The court disagreed with the Attorney General that the petitioners must actively demonstrate the sufferings occasioned by the delay and that in the present case they had been having a good time in the prison (singing and dancing, as the Attorney General told the court) and had not suffered at all.

Inconsistent with law

The court found the Attorney General’s submission inconsistent with law and the court’s recent judgment in Shatrughan Chauhan .

“Such a prerequisite would render the fundamental rights guaranteed under Part III of the Constitution beyond the reach of death-row convicts and will make them nugatory and inaccessible for all intent and purposes,” the court reasoned. By citing several moving letters written by the convicts to the President highlighting their agony, the court also sought to rebut the Attorney General’s submission that they were enjoying their time in jail.

The court held that regardless and independent of the suffering it caused, delay made the process of execution of death sentence unfair, unreasonable, arbitrary and capricious and, thereby, violated the procedural due process guaranteed under Article 21 of the Constitution and that a dehumanising effect was presumed in such cases. Therefore, it concluded that prolonged delay in execution of the death sentence, by itself, gave rise to mental suffering and agony, which rendered the subsequent execution of the death sentence inhuman and barbaric.

The court, while commuting the death sentences of the three convicts to life imprisonment, added that life imprisonment meant the end of one’s life, subject to any remission granted by the appropriate government under Section 432 of the Code of Criminal Procedure (CrPC), 1973, which in turn, was subject to the procedural checks mentioned in the said provision and a further substantive check in Section 433-A of the CrPC.

Relying on this observation, the Tamil Nadu government decided to remit the sentences of the three convicts and release them from prison after duly informing the Centre. The State government also decided to release four other convicts who are undergoing life imprisonment in the Rajiv Gandhi assassination case by remitting their sentences. They are Nalini Sriharan, Robert Pious, Jayakumar and Ravichandran.

The Central government moved the Supreme Court swiftly to stay the remissions on the grounds that the State government had not followed the prescribed procedure under the law. Acting on the Centre’s plea, the Supreme Court directed both the State and the Centre to maintain the status quo with regard to the three convicts whose death sentences were commuted by the court until March 6, when the case would come up for hearing.

The Supreme Court also stayed the remission of the four convicts who are undergoing life imprisonment until March 6, when it will hear the matter. Earlier, the State government had contested the Centre’s rushing to the court, saying the Centre ought to have replied to its letter seeking its consent to remit the sentences. The Supreme Court has agreed to consider the maintainability of the Centre’s petition against the remission of the sentences.

The Centre’s position is that under Section 435 of CrPC the State government does not have autonomous powers to remit sentences for offences listed under the Union List. Since the convicts in the Rajiv Gandhi assassination case were accused of offences under the Arms Act, the Explosive Substances Act, the Foreigners Act, the Wireless Telegraphy Act and the Passport Act, all of which come under the Union List, the Centre argued that the sentences could be remitted only if the Centre concurred with the State government. The outcome of the case in the Supreme Court will have a bearing on the fate of the convicts.