<p>Afzal Guru, convicted for the 2001 Parliament attack, was hanged on February 9, 2013, almost immediately after the President had rejected his long-pending mercy petition. <br /><br /></p>.<p>Veerappan’s aides were luckier. Four of them on death row for their 1993 killing of 22 policemen and informers in landmine blasts at Palar on the Karnataka-Tamil Nadu border, had time to move the Supreme Court after they were informed about the rejection of their mercy petitions.<br /><br /> The reprieve which they have obtained on February 20, 2013 is on account of the fact that the Supreme Court has decided to await its own decision in petitions filed by Devender Pal Singh Bhullar and M N Das. These petitions had sought commutation of their death sentences, because the decisions on their mercy petitions had been kept pending for an unreasonably long time before being rejected.<br /><br />One feels a sense of déjà vu when Presidential delays get highlighted. Ever since the 1980s, delays in carrying out death sentences have engaged the Supreme Court’s attention. <br /><br />This has happened because the right to life under Article 21 of the Constitution has acquired a new meaning in the post Maneka Gandhi (1978) era. The Supreme Court has accepted that execution of a death sentence after prolonged incarceration on death row would amount to cruel and unusual punishment.<br /><br /> In Vaitheeswaran (February 1983) case, a two-Judge Bench of the Supreme Court took the view that a delay of two years and above in execution of a death sentence (inclusive of the judicial process) would entitle a convict to get a death sentence reduced to life imprisonment. Naturally, this view did not survive for long, since the judiciary realised its own inability to decide death sentence cases finally within a two-year time span.<br /><br />In Sher Singh (March 1983) case, a three-Judge Bench of the Supreme Court overruled Vaitheeswaran decision, to the extent that it laid down a two-year limit, saying that no hard and fast rule could be laid down. Every case, the Court said, would have to be decided in the light of its own facts and circumstances, to see whether the delay in execution was unreasonable. The Court, however, asked the executive to impose a time limit on itself to decide mercy petitions, and that limit, the Court felt, should be three years.<br /><br />But we were soon back to square one in Javed Ahmed (November 1984) case. A two-Judge Bench headed by Justice Chinnappa Reddy (who had decided Vaitheeswaran case) reiterated the Vaitheeswaran view and doubted the correctness of Sher Singh view. The bench (in Javed Ahmed case) even went to the extent of saying that the Supreme Court sat in divisions of two and three for the sake of convenience and that it may be inappropriate for a division bench of three judges to overrule a division bench of two judges (though a Full Bench or a Constitution Bench might do so).<br /><br />And so a Constitution Bench sat in Triveniben (February 1989) case. The Constitution Bench affirmed Sher Singh view and overruled Vaitheeswaran and Javed Ahmed decisions. It took the view that inordinate delay in deciding a mercy petition would entitle a convict to seek commutation to life imprisonment, but that no rigid time period could be laid down. But the Court firmly (though strangely) excluded the time taken in judicial proceedings from consideration when deciding the question of delay.<br /><br />Inordinate delay<br /><br />Following Triveniben, the Supreme Court has in different cases found delays ranging from two years to eight years, in deciding mercy pleas to be inordinate, in the absence of sufficient reasons. The Supreme Court will be applying the principles laid down in Triveniben case (1989) to decide whether the delays in deciding the mercy petitions of Devender Pal Singh Bhullar, M N Das and Veerappan aides Gnanaprakasham, Simon, Meesekar Madaiah and Bilavendran were justified. But there is an uncomfortable question. If prolonged detention in death row is cruel and unusual, how does the judicial process get excluded? <br /><br />The view that fundamental rights cannot be claimed against the judiciary cannot be mechanically applied in respect of the right to life under Article 21. The judiciary ought to ensure that the entire judicial process up to the Supreme Court is completed within a reasonable time of not more than three years from the date of pronouncement of a death sentence by the trial court. It was done in the 26/11 Mumbai terror case and the Parliament attack case, and it ought to be done in every death sentence case. It is also disconcerting that the judgment is still awaited in the Bhullar and Das cases, though reserved on April 19, 2012.<br /><br />Let me add, in lawyer's language, that my views are “without prejudice” to my position that the time has come to abolish the death sentence in our country. In doing so, we will be in line with about 141 countries, ie two thirds of the countries of the world which are now abolitionist in law or practice. Statistics do not corroborate the deterrent effect of death penalty. On the other hand, in cases of political crimes or terrorism, it creates martyrs.<br /><br />Judicial fallibility<br /><br />The fundamental problem with the death sentence is that it is an irreversible and irretrievable punishment. It is administered by judges, who are after all, human and fallible. The Birmingham Six case is a classic example of judicial fallibility. <br /><br />In 1975, six Irishmen were convicted and sentenced to life imprisonment for the deaths of 21 persons in two Birmingham pubs. After all appeals failed, new evidence came to light which showed that the guilty men were others. They were set free in 1991. Thank God, the British Parliament had voted against the reinstatement of the death sentence, in spite of the horrors of terrorism in Northern Ireland.<br /><br />Those who think that the “rarest of the rare” doctrine evolved by our Supreme Court is the answer to the abolitionists, can't be more wrong. The Supreme Court has, in recent judgments, found errors in its own application of the doctrine. Seven of its own judgments awarding death sentence have been held to be erroneous!<br /><em><br />(The writer is senior advocate of Supreme Court and former addtional solicitor general of India.)</em><br /><br />Related Stories<br /><br /><a href="../content/314439/20-years-jail-still-waiting.html">20 years in jail and still waiting...</a><br /><br /><a href="../content/314438/a-master-planner-master-blaster.html">A master planner and master blaster cut short 22 lives</a></p>
<p>Afzal Guru, convicted for the 2001 Parliament attack, was hanged on February 9, 2013, almost immediately after the President had rejected his long-pending mercy petition. <br /><br /></p>.<p>Veerappan’s aides were luckier. Four of them on death row for their 1993 killing of 22 policemen and informers in landmine blasts at Palar on the Karnataka-Tamil Nadu border, had time to move the Supreme Court after they were informed about the rejection of their mercy petitions.<br /><br /> The reprieve which they have obtained on February 20, 2013 is on account of the fact that the Supreme Court has decided to await its own decision in petitions filed by Devender Pal Singh Bhullar and M N Das. These petitions had sought commutation of their death sentences, because the decisions on their mercy petitions had been kept pending for an unreasonably long time before being rejected.<br /><br />One feels a sense of déjà vu when Presidential delays get highlighted. Ever since the 1980s, delays in carrying out death sentences have engaged the Supreme Court’s attention. <br /><br />This has happened because the right to life under Article 21 of the Constitution has acquired a new meaning in the post Maneka Gandhi (1978) era. The Supreme Court has accepted that execution of a death sentence after prolonged incarceration on death row would amount to cruel and unusual punishment.<br /><br /> In Vaitheeswaran (February 1983) case, a two-Judge Bench of the Supreme Court took the view that a delay of two years and above in execution of a death sentence (inclusive of the judicial process) would entitle a convict to get a death sentence reduced to life imprisonment. Naturally, this view did not survive for long, since the judiciary realised its own inability to decide death sentence cases finally within a two-year time span.<br /><br />In Sher Singh (March 1983) case, a three-Judge Bench of the Supreme Court overruled Vaitheeswaran decision, to the extent that it laid down a two-year limit, saying that no hard and fast rule could be laid down. Every case, the Court said, would have to be decided in the light of its own facts and circumstances, to see whether the delay in execution was unreasonable. The Court, however, asked the executive to impose a time limit on itself to decide mercy petitions, and that limit, the Court felt, should be three years.<br /><br />But we were soon back to square one in Javed Ahmed (November 1984) case. A two-Judge Bench headed by Justice Chinnappa Reddy (who had decided Vaitheeswaran case) reiterated the Vaitheeswaran view and doubted the correctness of Sher Singh view. The bench (in Javed Ahmed case) even went to the extent of saying that the Supreme Court sat in divisions of two and three for the sake of convenience and that it may be inappropriate for a division bench of three judges to overrule a division bench of two judges (though a Full Bench or a Constitution Bench might do so).<br /><br />And so a Constitution Bench sat in Triveniben (February 1989) case. The Constitution Bench affirmed Sher Singh view and overruled Vaitheeswaran and Javed Ahmed decisions. It took the view that inordinate delay in deciding a mercy petition would entitle a convict to seek commutation to life imprisonment, but that no rigid time period could be laid down. But the Court firmly (though strangely) excluded the time taken in judicial proceedings from consideration when deciding the question of delay.<br /><br />Inordinate delay<br /><br />Following Triveniben, the Supreme Court has in different cases found delays ranging from two years to eight years, in deciding mercy pleas to be inordinate, in the absence of sufficient reasons. The Supreme Court will be applying the principles laid down in Triveniben case (1989) to decide whether the delays in deciding the mercy petitions of Devender Pal Singh Bhullar, M N Das and Veerappan aides Gnanaprakasham, Simon, Meesekar Madaiah and Bilavendran were justified. But there is an uncomfortable question. If prolonged detention in death row is cruel and unusual, how does the judicial process get excluded? <br /><br />The view that fundamental rights cannot be claimed against the judiciary cannot be mechanically applied in respect of the right to life under Article 21. The judiciary ought to ensure that the entire judicial process up to the Supreme Court is completed within a reasonable time of not more than three years from the date of pronouncement of a death sentence by the trial court. It was done in the 26/11 Mumbai terror case and the Parliament attack case, and it ought to be done in every death sentence case. It is also disconcerting that the judgment is still awaited in the Bhullar and Das cases, though reserved on April 19, 2012.<br /><br />Let me add, in lawyer's language, that my views are “without prejudice” to my position that the time has come to abolish the death sentence in our country. In doing so, we will be in line with about 141 countries, ie two thirds of the countries of the world which are now abolitionist in law or practice. Statistics do not corroborate the deterrent effect of death penalty. On the other hand, in cases of political crimes or terrorism, it creates martyrs.<br /><br />Judicial fallibility<br /><br />The fundamental problem with the death sentence is that it is an irreversible and irretrievable punishment. It is administered by judges, who are after all, human and fallible. The Birmingham Six case is a classic example of judicial fallibility. <br /><br />In 1975, six Irishmen were convicted and sentenced to life imprisonment for the deaths of 21 persons in two Birmingham pubs. After all appeals failed, new evidence came to light which showed that the guilty men were others. They were set free in 1991. Thank God, the British Parliament had voted against the reinstatement of the death sentence, in spite of the horrors of terrorism in Northern Ireland.<br /><br />Those who think that the “rarest of the rare” doctrine evolved by our Supreme Court is the answer to the abolitionists, can't be more wrong. The Supreme Court has, in recent judgments, found errors in its own application of the doctrine. Seven of its own judgments awarding death sentence have been held to be erroneous!<br /><em><br />(The writer is senior advocate of Supreme Court and former addtional solicitor general of India.)</em><br /><br />Related Stories<br /><br /><a href="../content/314439/20-years-jail-still-waiting.html">20 years in jail and still waiting...</a><br /><br /><a href="../content/314438/a-master-planner-master-blaster.html">A master planner and master blaster cut short 22 lives</a></p>