India’s Supreme Court commutes the sentences of 15 death row prisoners to life in jail on the grounds of delay
January 29, 2014
Shatrughan Chauhan & another V Union of India & Others
2014 STPL(Web) 41 SC
Supreme Court of India
P. Sathasivam, Cji., Ranjan Gogoi And Shiva Kirti Singh, JJ
The Petitioners filed a writ petitions, under Article 32 of the Constitution of India, which had been filed either by the convicts, who were awarded death sentence or by their family members or by public-spirited bodies like People’s Union for Democratic Rights (PUDR) based on the rejection of mercy petitions by the Governor and the President of India.
In all the writ petitions, the main prayer consistently related to the issuance of a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India was unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life. Further, they also prayed for declaration that the order passed by the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable.
The 15 death row inmates on whose pleas the apex court delivered its verdict were sandalwood smuggler Veerappan’s aides and others. The other death row convicts included Suresh, Ramji, Gurmeet Singh, Praveen Kumar, Sonia and her husband Sanjeev, Sundar Singh and Jafar Ali convicted in various cases. While Suresh, Ramji, Gurmeet Singh and Jafar Ali were lodged in prisons in Uttar Pradesh, former Haryana MLA Ralu Ram Punia’s daughter Sonia and her husband Sanjeev were jailed in Haryana. Praveen was in a Karnataka jail and Sundar Singh was an inmate of a prison in Uttaranchal. Sonia and Sanjeev were awarded death penalty for killing eight members of her family, including her parents and three children of her brother in 2001.Gurmeet Singh was convicted for killing 13 of his family members in 1986. Jafar Ali murdered his wife and five daughters. Suresh and Ramji killed five of their relatives.
i. Whether delay in the decision of mercy plea was a relevant ground for commuting death sentence to life imprisonment.
ii. Whether death sentence could be commuted to life sentence if the person was suffering from mental illness
iii. Whether Solitary confinement of a death convict was unconstitutional
iv. Whether a death convict and his family members must be informed after the mercy plea was rejected by the President or Governor
v. Whether a death convict must be hanged within 14 days after the rejection of mercy petition
International Law – Constitutional Law of India – death Sentence – delay – delay in determination of mercy petitions – whether this amounted to a violation of the petitioners’ rights – whether the death sentences could be commuted to life imprisonment
Constitution of India
“Article 72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence –
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.
(3) Nothing in sub-clause of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State, under any law for the time being in force.”
Article 161: Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”
Article 32: Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
1) The power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a constitutional duty. As a result, it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the people in the highest authority. The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it. Further, it is well settled that the power under Articles 72 and 161 of the Constitution of India was to be exercised on the aid and advice of the Council of Ministers.
2) The right to life is the most fundamental of all rights. The right to life, as guaranteed under Article 21 of the Constitution of India, provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Inasmuch as Article 21 was available to all the persons including convicts and continued till last breath if they establish and proved the supervening circumstances, such as undue delay in disposal of mercy petitions, undoubtedly, this Court, by virtue of power under Article 32, can commute the death sentence into imprisonment for life. As a matter of fact, it is the stand of the petitioners that in a petition filed under Article 32, even without a presidential order, if there is unexplained, long and inordinate delay in execution of death sentence, the grievance of the convict can be considered by this Court
3) Undue long delay in execution of sentence of death would entitle the condemned prisoner to approach this Court under Article 32. However, this Court would only examine the circumstances surrounding the delay that had occurred and those that have ensued after sentence was finally confirmed by the judicial process. This Court cannot reopen the conclusion already reached but may consider the question of inordinate delay to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life.
4) Keeping a convict in suspense while consideration of his mercy petition by the President for many years was certainly an agony for him/her. It created 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.
5) It was clear that after the completion of the judicial process, if the convict filed a mercy petition to the Governor/President, it was incumbent on the authorities to dispose of the same expeditiously. Though no time limit can be fixed for the Governor and the President, it was the duty of the executive to expedite the matter at every stage, by calling for the records, orders and documents filed in the court, preparation of the note for approval of the Minister concerned, and the ultimate decision of the constitutional authorities.
6) 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 or 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. To this extent, the jurisprudence has developed in the light of the mandate given in our Constitution as well as various Universal Declarations and directions issued by the United Nations.
7) The procedure prescribed by law, which deprives a person of his life and liberty must be just, fair and reasonable and such procedure mandates humane conditions of detention preventive or punitive. In this line, although the petitioners were sentenced to death based on the procedure established by law, the inexplicable delay on account of executive is inexcusable. Since it is well established that Article 21 of the Constitution 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.
8) If there is undue long delay in execution of sentence of death, the condemned prisoner is entitled to approach this Court under Article 32 and the court is bound to examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and to take a decision whether execution of sentence should be carried out or should be altered into imprisonment for life.
9) The solitary confinement, even if mollified and modified marginally, was not sanctioned by Section 30 of the Prisons Act for prisoners ‘under sentence of death’. The crucial holding under Section 30(2) was that a person was not ‘under sentence of death’, even if the Sessions Court had sentenced him to death subject to confirmation by the High Court. He is not ‘under sentence of death’ even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court was likely to be or had been moved or was pending. Even if this Court had awarded capital sentence, Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, had not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there was no stay of execution by the authorities; the person was under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be ‘under sentence of death’ means ‘to be under a finally executable death sentence’.
10) In the absence of proper, plausible and acceptable reasons for the delay, the delay of twelve, twenty, and nine and a half years in considering the mercy petitions is a relevant ground for the commutation of death sentence into life imprisonment.
11) It is true that there is some explanation in the affidavit filed on behalf of the State in respect of the time taken by the Governor for rejection of their mercy petitions, however, there was no acceptable/adequate reason for delay of six years at the hands of the Ministry of Home Affairs followed by the rejection order by the President.
12) Though learned counsel has referred to the fact that the trial court and the High Court followed certain decisions which were later held as per incuriam, in view of the fact that there was undue delay of six years which is one of the circumstances for commutation of sentence from death to life, we are not adverting to all other aspects.
13) The Court perused the records of the Ministry of Home Affairs produced by learned ASG and the summary prepared for approval of the President. There is no specific explanation in the summary prepared by the Ministry of Home Affairs for the President for the delay of six years. In view of the same and in the light of the principles enunciated in various decisions which we have adverted to in the earlier part of our judgment, we hold that the petitioners have made out a case for commutation of sentence.
14) Execution of death sentence should be carried out only 14 days after rejection of the mercy plea. Prison authorities must provide legal aid to prisoners facing death sentence so that they can approach courts for commutation of their sentence on the ground of their illness and delay in deciding mercy plea by the government.
Death sentence of 15 convicts commuted to life imprisonment.
259. In W.P (Crl) No 56 of 2013, Peoples’ Union for Democratic Rights have pleaded for guidelines for effective governing of the procedure of filing mercy petitions and for the cause of the death convicts. It is well settled law that executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres in every person, even death-row prisoners, till the very last breath of their lives. We have already seen the provisions of various State Prison Manuals and the actual procedure to be followed in dealing with mercy petitions and execution of convicts. In view of the disparities in implementing the already existing laws, we intend to frame the following guidelines for safeguarding the interest of the death row convicts.
1. Solitary Confinement: This Court, in Sunil Batra (supra), held that solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison Manuals of the States provide necessary rules governing the confinement of death convicts. The rules should not be interpreted to run counter to the above ruling and violate Article 21 of the Constitution.
2. Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected. Various judgments of this Court have held that legal aid is a fundamental right under Article 21. Since this Court has also held that Article 21 rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts.
3. Procedure in placing the mercy petition before the President: The Government of India has framed certain guidelines for disposal of mercy petitions filed by the death convicts after disposal of their appeal by the Supreme Court. As and when any such petition is received or communicated by the State Government after the rejection by the Governor, necessary materials such as police records, judgment of the trial court, the High Court and the Supreme Court and all other connected documents should be called at once fixing a time limit for the authorities for forwarding the same to the Ministry of Home Affairs. Even here, though there are instructions, we have come across that in certain cases the Department calls for those records in piece-meal or one by one and in the same way, the forwarding Departments are also not adhering to the procedure/instructions by sending all the required materials at one stroke. This should be strictly followed to minimize the delay. After getting all the details, it is for the Ministry of Home Affairs to send the recommendation/their views to the President within a reasonable and rational time.
Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required materials for early decision.
4. Communication of Rejection of Mercy Petition by the Governor: No prison manual has any provision for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since the convict has a constitutional right under Article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition.
The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available.
5. Communication of Rejection of the Mercy Petition by the President: Many, but not all, prison manuals have provision for informing the convict and his family members of the rejection of mercy petition by the President. All States should inform the prisoner and their family members of the rejection of the mercy petition by the President. Furthermore, even where prison manuals provide for informing the prisoner of the rejection of the mercy petition, we have seen that this information is always communicated orally, and never in writing. Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing.
6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.
7. Minimum 14 days notice for execution: Some prison manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some prison manuals have a minimum period of 1 day, others have a minimum period of 14 days. 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 for the following reasons:-
(a) It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.
(b) It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison whichnmay be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families. It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time.
8. Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need.
9. Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to stop an execution on account of the convict’s physical or mental ill health. It is, therefore, necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed.
If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action.
10. Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc. These documents are must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary pre-requisite to the accessing of these rights, it is necessary that copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts.
11. Final Meeting between Prisoner and his Family: 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.
12. Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem to be conducted on death convicts after the execution, we think in the light of the repeated arguments by the petitioners herein asserting that there is dearth of experienced hangman in the country, the same must be made obligatory. In Deena alias Deen Dayal and Ors. vs. Union of India (1983) 4 SCC 645, the petitioners therein challenged the constitutional validity of Section 354(5) on the ground that hanging a convict by rope is a cruel and barbarous method of executing death sentence, which is violative of Article 21 of the Constitution. This court held as follows:-
“7. …After making this observation Bhagwati, J., proceeds thus :
The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v.Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly unaccompanied by intense physical torture and pain.” (emphasis supplied).
81. Having given our most anxious consideration to the central point of inquiry, we have come to the conclusion that, on the basis of the material to which we have referred extensively, the State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent “the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent, with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind.”
Relevance to the Kenyan Situation
Constitution of Kenya
Article 133 of the Constitution provides for the Power of mercy for convicted person. The article provides that:
133. Power of mercy
(1) On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by–
(a) granting a free or conditional pardon to a person convicted of an offence;
(b) postponing the carrying out of a punishment, either for a specified or indefinite period;
(c) substituting a less severe form of punishment; or
(d) remitting all or part of a punishment.
(2) There shall be an Advisory Committee on the Power of Mercy, comprising–
(a) the Attorney-General;
(b) the Cabinet Secretary responsible for correctional services; and
(c) at least five other members as prescribed by an Act of Parliament, none of whom may be a State officer or in public service.
(3) Parliament shall enact legislation to provide for–
(a) the tenure of the members of the Advisory Committee;
(b) the procedure of the Advisory Committee; and
(c) criteria that shall be applied by the Advisory Committee in formulating its advice.
(4) The Advisory Committee may take into account the views of the victims of the offence in respect of which it is considering making recommendations to the President.
Power of Mercy Act, 2011
The Power of Mercy Act, 2011 has generously provisioned that the operations of the Committee be conducted under the most transparent and accountable procedures and contains quite a few convict-friendly legislation as well. Part II of the Act:
Anyone may lodge such a petition on behalf of another, and such a petition is valid even if it is not ‘professionally’ done – a truly convict-friendly provision:
19. (1) Any person may, subject to the Constitution and this Act, petition the President, through the Committee, to exercise the power of mercy and grant any relief specified in Article 133(1) of the Constitution.
(3) For the avoidance of doubt, a petition that provides the requisite information shall not be incompetent only for the reason that— (a) it does not accord strictly with the prescribed format; or (b) it has been commenced in person or through a representative other than an advocate.
It is incumbent upon the Advisory Committee to facilitate the ability of a convict to lodge his/her petition:
20. (4) A petition under this section may be lodged by electronic means.
(5) The Cabinet Secretary and Committee shall ensure that the relevant forms and information are supplied to all the correctional facilities.
Furthermore, such petitions must be considered promptly, always, without delay and the same reported to the applicant:
23. (1) The President shall, within thirty days of receipt of the recommendations by the Committee, consider the recommendations and either approve or reject the petition.
(2) Where the President approves or rejects a recommendation of the Committee pursuant to subsection (1), the Committee shall, in writing, notify the petitioner or their representative of the President’s decision within seven days.
(3) The Committee shall cause the approved petitions under subsection (1) to be published, in the Gazette, within twenty-one days of the receipt of the President’s decision.
The Advisory Committee must make public its workings. The decision of the Committee is not final. A rejected petition can be appealed against:
24. (1) ……. a person may, after the rejection of a petition ……., re-petition only once and on new grounds, to the President through the Committee.
Should the vote by Members of the Committee on a petition before them result in a tie, the petitioner has the benefit of doubt:
28. (1) The recommendations of the Committee shall be in accordance with the opinion of a majority of the members reviewing a petition.
(2) If the members are equally divided in opinion, a recommendation for the grant of the relief sought shall be considered as having been affirmed.