Author: Nandana Mohandas, Symbiosis Law School, Pune
ABSTRACT
This article explains the background of the subject of clemency/mercy petitions in India. It delves into the historical background and reasons for its invocation. It explains the doctrines that led to its evolution and contextualizes the recent Supreme Court judgement that provided the guidelines for its procedural smoothness.
While civil society organizations and human rights activists remain engaged in the perennial debate regarding the morality and practicality of the death punishment, the countries where this remains recognized as a practice requires robust laws tot handle such situations. A sound legal system is an amalgamation of dynamic jurisprudence, amassed and amended substantive laws and a water-tight procedural framework. This article aims to touch up on the jurisprudence and procedural regulations of the death sentence as it is practiced in India in nexus with related provisions.
The Executive of the Union and its representatives within each state in the Indian federal system is tasked with the unique powers to affect certain judicial decisions in this matter. It is aptly named as the ‘Mercy Petition’ and the power to approve such requests lie with the President of India and Governors of each state. These powers are enshrined in the Indian Constitution; in Article 72 for the former and Article 161 for the latter. It is also widely regarded as Clemency powers or Pardoning powers of the Executive branch of the Indian legal system.
Prior to delving into the nuances of such cases and exploring the related laws as evolved by the judiciary, it is necessary to contextualize the nature of crimes that warrant a death penalty in India. Due importance is given to human life and recognition of the importance of providing convicts with the chance to reform and rehabilitate is considered integral to the framing of these laws. To this effect, Indian courts have added to the growing concepts of settled law, ideas such as the ‘Rarest of rare doctrine’, ‘Doctrine of proportionality’ and the principle of individualized sentencing in nexus with principles of natural justice.
Until the recent judgement from the Supreme Court that laid down express guidelines for the treatment of mercy petitions, the main procedural understanding of this matter was a simple timeline. Section 472 of the newly enacted criminal procedural legislation, BNSS detailed that upon the information conveyed by the Superintendent of the jail that the Supreme Court had dismissed the special leave petition filed in their matter, a 30-day period began within which the convict could seek the exercise of clemency powers. The exception ot his was laid down in cases where the multiplicity of convicts would mean a 60-day period keeping in mind the externalities. Pardoning is not a right and is subjective to the case presented on factors such as family livelihood, age of the convict and other mitigating factors.
It has been recognized that there is often an inordinate delay between the verdict of the death sentence and its execution. This is a major cause for concern as this could lead to extreme mental agony to the convict and have an unintended adverse effect on their mental health. In the case of Shatrughan Singh Chauhan v. UOI, this was recognized in nexus with India’s signatory compliance with the Universal Declaration of Human Rights that prohibits inhuman treatment of prisoners in any form.
The counsel for the appellants quoted several landmark judgements to strengthen the concept of precedents wherein it was confirmed that an inordinate delay could commute a death sentence to a life imprisonment in certain conditions. The learned advocate presented that practice has created a twin test – one that judged the nature of delay, whether avoidable or not and the second – the quantum of delay that occurred. This defended the position that the twenty-two-month period taken by the authorities in determination of the facts and circumstances cannot be inferred to be inordinate as it is necessary to conduct thorough investigations into the backgrounds of the parties essential to the decision. This is supported by the decision in B.A. Umesh that held that even a period of twenty-seven months was not excessive.
The judgement further evaluated the dates and the timeline involved in the case before the court to understand the impact of it on the rights that lay with the prisoners. The court also expressed its unhappiness with the procedural delays in such a sensitive matter and this formed the background of the need for laying down clear guidelines. It is also prudent to note that the judgement also quotes the case by People’s Union for Democratic Rights (PUDR) v. Union of India & Ors by the High Court of Judicature at Allahabad. This case is crucial for its outlining of the procedures involved in the execution of the death sentences of convicts.
The essence of the guidelines as provided by the Supreme Court herein confers a responsibility for state governments to set up designated cells to handle such matters with efficiency. This authority would eb responsible for curating all necessary files and reports to ensure that a reserve of information is maintained thoroughly. In lieu of evolving landscapes and prioritizing smooth processing, the court also recommends the use of electronic communication with exceptions to confidential information. Its guidelines also include that the concerned sessions courts must ensure that prompt listing of such matters happen and maintain an exhaustive record of death sentence cases. It also lays down the necessity of the application for an executive warrant protocol as a procedural duty of the state government.
CONCLUSION
The Apex Court’s guidelines although delayed in this matter that has led to a string of judicial precedents in this matter is a commendable step forward in providing a solution to the procedural plague that sets upon the Indian system. Additionally, the multi-layered structure is a safety valve to ensure that even a default in one step does not lead to unsatisfactory results. However, it is to be considered that these guidelines will take considerable time for implementation and can be subject to inefficiencies over due course of time. Only time will tell if these guidelines transform themselves to a well-oiled machinery of cases regarding mercy petitions. Only time will tell if these guidelines evolve from mere theory into a well-oiled machine, or if they’ll remain stuck in the gears of legal bureaucracy.
FAQS
Considering that death sentences are awarded for crimes that shake the collective conscience of the country, what are the factors the courts attempt to balance when passing a judgement?
Article 21 and other provisions act as safety valves to attempt to safeguard the rights of even the convicts of the most heinous crimes. The court considers whether the crime is so gruesome that it deeply disturbs the moral and social sensibilities of society. If the crime shocks the collective conscience, the death penalty may be justified to maintain societal order and faith in justice.
How do courts ensure the death penalty is not imposed arbitrarily?
The principle of avoiding arbitrariness, as established in Mithu v. State of Punjab (1983), ensures that the death penalty is applied only after careful judicial scrutiny. Courts require reasoned, fair, and unbiased judgments, preventing arbitrary imposition of capital punishment.
