Mercy and the machinery of death

IN Bamnia village in Purulia, West Bengal, the mother of Ajay Kumar Pal, India’s latest mercy-rejected death-row prisoner, lives in abject poverty with very little to eat or wear, surviving on food that villagers give her on some days for clearing dung from their cowsheds. She does not know that the President of India has rejected the mercy petition of her son, and none of the villagers has mustered the courage to tell her.

The President of India, acting on the binding advice of the Ministry of Home Affairs (MHA), rejected the mercy petition of Ajay Kumar Pal in October 2013. Ajay was tried and found guilty of murdering and burning five members of a family (including three children) he used to work for in Ranchi. The High Court and the Supreme Court later confirmed this ruling of the Special Central Bureau of Investigation judge.

The people of Bamnia had only one question about the decision—if the Supreme Court can set aside the death sentence against persons who participated in the assassination of a former Prime Minister, why it cannot set aside a similar sentence against the son of a starving destitute woman. As far as the families of death-row prisoners are concerned, the technicalities of the Supreme Court’s judgment in the Shatrughan Chauhan vs Union of India or Murugan vs Union of India (Rajiv Gandhi assassination case) on the inordinate delay by the executive do not matter. For them, it appears that the Supreme Court is taking an anti-death penalty position and they want it applied in their cases. In such contexts, technical explanations seem shallow and meaningless.

Nonetheless, it is important to understand precisely the moves made by the Supreme Court in Shatrughan Chauhan and Murugan . We must be clear that the Supreme Court is not heading towards an abolitionist position and any complacency arising from an understanding to the contrary will be dangerous. The Supreme Court, despite both judgments, is very far from setting itself on the path to abolition, and through these two judgments it has essentially embarked on reforming the administration of the death penalty in India. Implicit in that project is the acknowledgment that the death penalty is here to stay for the foreseeable future. In Shatrughan Chauhan and Murugan , the court has essentially sent out the message to the executive that it cannot take very long to decide on mercy petitions from death-row prisoners without a satisfactory explanation for the delay. In the matter of commuting the death sentences of 18 individuals in these cases, no State government or the Central government could provide an acceptable justification for the delay.

Dehumanising Effect

Chief Justice P. Sathasivam along with Justices Ranjan Gogoi and Shiva Kirti Singh have delivered opinions in Shatrughan Chauhan and Murugan that are refreshingly clear and structured in their reasoning and are also progressive. The cumulative effect of these judgments is that the delay in deciding mercy petitions is, in and of itself, a sufficient ground for commuting the death sentence to life imprisonment. While the court has not come up with a rigid number in terms of the years beyond which delay would be unacceptable, it has established the position that each prisoner need not prove the effects of delay in his/her individual case. In Murugan , the court has explicitly rejected the contention that not everyone suffers the effects of delay in the same way and that an individual determination needs to be made in each case. The court has taken the position that irrespective of individual suffering, inordinate delay in deciding mercy petitions makes the process of execution of the death sentence “unfair, unreasonable, arbitrary and capricious”. The court goes on to hold that the “dehumanising effect is presumed in such cases” and no burden can be imposed on the prisoner to prove such an impact. In a country plagued with unequal access to justice and legal representation, it really would have been a travesty of justice to ask petitioners to prove the dehumanising effect in individual cases.

The Cruelty of Waiting

Though a lot has been said about the degrading way in which prisoners sentenced to death are made to wait for the President’s decision on their mercy pleas, there has hardly been any detailed study of the issues involved. Until I heard mercy-rejected death-row prisoners speak, I hardly understood what this experience meant and largely resorted to words such as “torture”, “cruel and unusual punishment” and “dehumanising” to articulate my objection to the delay in deciding mercy petitions.

Talking to prisoners whose mercy petitions had been rejected made me realise the hollowness of such articulation. Prisoners awaiting a decision on their mercy petitions live with the possibility that every day could well be their last. As they lie down to sleep at night, they fearfully wait for the sound of the huge gates of their compound opening, for the clicks of the humongous padlocks that are used to secure the gates and the cells leading to them. Approaching footsteps fill them with fear as though death was coming for them. Everything, every little sound and every little movement of officials, makes them wonder if their time to die has come. They live in the constant fear that jail officials will come to take them away for the hanging after having received news about the rejection of their mercy petition. Some of them even live in compounds that are adjacent to the gallows. Hearing the gates to the gallows open, a broom being used there, or the rustle of dried leaves as the gallows are cleaned makes them wonder if the preparation for their death has commenced. Living out each day on the cusp of life and death, where the ultimate decision whether he/she will live or die lies in the hand of other human beings, is the height of agony.

Commutation and Remission

However, these two judgments of the Supreme Court do give rise to some concerns. The immediate concern is about the consequence of the commutation. In Murugan , the court explicitly states that though commutation to life imprisonment means imprisonment until the end of one’s life, it is subject to any remission that may be granted by the appropriate government under Sections 432 and 433A of the Code of Criminal Procedure, 1973. It is interesting to note that there is no such explicit authorisation of the appropriate government’s power of remission in Shatrughan Chauhan in the context of the life imprisonment of the 15 prisoners in that case. In the absence of such an explicit statement, one would assume that the appropriate government continues to have the power of remission without any further restrictions being imposed by the Supreme Court. However, while these two judgments by Benches headed by the Chief Justice clearly do not interfere with the appropriate government’s power of remission, there are increasing instances where the Supreme Court is placing fetters on the power of remission in death penalty cases that are commuted to life imprisonment.

In November 2013, two judges of the Supreme Court in Madhurnatha vs State of Karnataka commuted the death sentence of three prisoners lodged in Belgaum Central Jail to 30 years in prison without any remission whatsoever. Madhurnatha, Rafiq and Jayanna had been tried and found guilty of kidnapping and murdering one person and sentenced to death by the Sessions Court in July 2008. Similarly, in February 2014, Justices Radhakrishnan and Vikramjit Sen commuted the death sentences of two prisoners in different cases to 20 years and 30 years respectively, without any possibility of remission. In the first case, Birju had been sentenced to death for murdering a one-year-old child while in the other case, Anthony Arikswamy Joseph was on death row for murdering a 10-year-old boy after sodomising him. No doubt, we must welcome the tendency of Supreme Court judges to set aside the death penalty and allow for the possibility of reformation.

However, this chance of reformation and subsequent release from prison must be given in a consistent manner where the decision to commute the death sentence has been taken. All of this must be seen in the context of the Supreme Court’s call to the Centre in October 2013 to amend the Indian Penal Code and provide for life imprisonment without remission for “heinous” crimes. This move towards life imprisonment without remission must be resisted strongly. It must be resisted because it abandons the philosophy of reformation that underlies our criminal justice system and takes us very close to retributive justice. The appropriate government, through prison officials and other procedures, remains best placed to evaluate the reformation process of the prisoner.

Undoubtedly, there is scope for abuse of that power, but efforts must be directed towards preventing such abuse rather than unduly interfering with the appropriate government’s power of suspension, remission and commutation. It would also be presumptuous on our part to think that death-row prisoners would only be glad to have their death sentence replaced with imprisonment for life. A very large proportion of death-row prisoners we have interviewed prefer to be hanged rather than to live out the rest of their lives in India’s inhumane jails.

One of the likely consequences of the decision in Shatrughan Chauhan and Murugan is going to be a quicker disposal of mercy petitions. In that sense, I do believe that we are going to see the MHA deal with mercy petitions at a much faster pace and the President of India has already demonstrated that he is not willing to keep any mercy petition pending in the President’s Secretariat for a long period. And we are already starting to see evidence of this. At the time the petition in ShatrughanChauhan was being filed, there were no mercy petitions pending before the President.

However, since then the President has rejected the mercy plea of Ajay Kumar Pal after receiving advice from the MHA. The Ministry had also recommended that the President reject the mercy petition of Seema and Renuka, sentenced to death for kidnapping and murdering five children. However, the President’s Secretariat has returned the file to the MHA asking it to take a relook at the issue in the light of the decision in Shatrughan Chauhan . It is also now being reported that the MHA has been asked by the Maharashtra government to reject the mercy petition of Yakub Memon, sentenced to death for his role in the 1993 Bombay blasts. The MHA is likely to send his file very soon to the President with the advice that the mercy petition be rejected. This could result in fast-paced activity on the issue of mercy petitions from death-row prisoners. That requires a lot more attention to be paid to ensuring timely access to decisions being taken on mercy petitions at different levels. Unless we are aware of these decisions, it will be impossible to ensure that all the constitutional rights identified in Shatrughan Chauhan are actually made available to India’s death-row prisoners whose mercy petitions have been rejected.

There is an urgent need to radically alter our imagination about the wrongness of the death penalty in India. It is extremely limiting to think about the wrongness of the death penalty in India as only about being hanged. The moment we imagine the problem to be only about hanging and focus our efforts only on ensuring that people are not hanged, we miss out on a wide range of issues that confront prisoners sentenced to death and their families. There is tremendous suffering amongst India’s death-row prisoners even before they get to the stage of the mercy petition, if at all. India’s death-row prisoners are not allowed to work in jail and a large proportion of them live only with other death-row prisoners. All that they can do is think about their death on an everyday basis. There are issues of access to proper medical care because death-row prisoners face many hurdles when it comes to accessing hospitals outside the prison.

There is also the issue of violence within jails that is particularly acute for prisoners sentenced to death for sexual crimes, which is worsened when the victim is a minor. And all of this is even more problematic in the context of the fact that in a large number of cases where the death penalty is handed out (rape and murder cases), there is hardly any credible evidence. Trial court judges, we have been repeatedly told, have the attitude that they cannot take the risk of handing out a lesser punishment in such cases and that the prisoner sentenced to death can get the appropriate relief from the High Court. An abolitionist campaign must focus on these smaller battles and not just attempt to prevent hangings. A prisoner sentenced to death undergoes many inhumane processes way before he/she is hanged and only by understanding these processes can we begin to comprehend the impossibility of having the death penalty in India.

The judgments in Shatrughan Chauhan and Murugan are undoubtedly a significant victory for a fairer administration of the death penalty. At the same time, we must acknowledge that we are a fair distance away from mounting a meaningful challenge to the death penalty per se . There is nothing new that can be put before the court to challenge the constitutionality of the death penalty and a judgment upholding the death penalty would be disastrous at this stage.

But none of that must take away the significant victories that have been achieved in Shatrughan Chauhan and Murugan . The immediate effort must be to ensure that there is consistent application of the rulings in these cases. Even technically, prisoners like Dharampal in the Ambala Central Jail and Saibanna in the Belgaum Central Jail must get the immediate benefit of these two judgments. Beyond that, there is the battle of perception arising from these two judgments. In the interviews we have conducted as part of the Death Penalty Research Project after Shatrughan Chauhan , prisoners sentenced to death have repeatedly asked us why they cannot be let off the death penalty when it could be done for 15 others. I do not think we convinced any of them with our responses and as I find my way to Birsa Munda Central Prison in Ranchi to meet Ajay Kumar Pal, I cannot help wonder how we shall explain any of this to his mother when she is informed that the President of India has pushed her son very close to the noose.

Anup Surendranath is Assistant Professor of Law and the Director of the Death Penalty Research Project at National Law University, Delhi.