After clemency, the court must address the death penalty itself.
India has long been party to the United Nations covenant on the abolition of the death penalty but has leaned toward its progressive abolition. Even the successive law commission reports have opined that social and economic conditions in India are not ripe for the total abolition of state killings in the form of the death sentence.
The nation just celebrated the 64th year of republican democracy — when will social and economic conditions be ripe is a question that may be asked by many, not just convicts under a death sentence and their families.
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The Supreme Court also endorsed the view that conditions are not ripe when it sustained two constitutional challenges to the death penalty. But, overall, it has been more progressive than the supreme executive and legislature. It has held that the death sentence may be awarded in “the rarest of rare cases”, the criteria for which have been specified. What this means in actual practice has been a matter of great debate and, no doubt, the Supreme Court has been inconsistent in application. Its judgments furnish the best evidence there is for the total abolition of the death sentence.
On January 21, the Supreme Court commuted the death sentences of 15 convicts in the Shatrughan Chauhan and another vs Union of India case. It said that certain “supervening circumstances” could be grounds for commuting a death sentence into a life sentence. These are: delay in reaching clemency decisions, insanity while serving the sentence, solitary confinement, judgments declared by the court to be erroneous (per incuriam) and “procedural lapses”.
The Supreme Court unambiguously declares that the right to life and liberty (guaranteed under Article 21), which Parliament may not abridge or take away, is of paramount importance in adjudging the constitutionality of the governor’s or president’s power to grant pardon. The power of clemency is the power of the people, which has been delegated to them, and should only be exercised on the advice of the council of ministers. This clarification is welcome, since presidents may now think twice about exercising their own discretion. The fact that now the procedure for clemency “is certainly subject to judicial review”, under Article 21, is a considerable normative advance. The death penalty does not operate when the executive violates its “constitutional duty” to “aid… justice”, acting instead in “defiance of it”.
In almost all of the cases under consideration, presidential clemency took as long as 12 years. The Supreme Court declares this to be “unreasonable”, “inordinate” and “undue”. “Unexplained” delays in clemency have been pronounced unjust and unconstitutional. But what these phrases mean is for future courts to decide, and they may vary in their approach. Even the Supreme Court itself, for example, may accept a duly explained delay as “reasonable”.
In this context, the request made by the People’s Union for Civil Liberties and People’s Union for Democratic Rights for guidelines on the exercise of clemency powers makes full constitutional sense. In the concluding section of the judgment, the Supreme Court does lay down some guidelines “safeguarding the interest of death row convicts”. But it is reluctant to frame additional guidelines on the award of capital punishment, on the grounds that it has refused to do so in the past because of the “nature of power enshrined in Article 72/ 161” and the “presumption that constitutional authority acts with an application of mind”.
This is disappointing because by the Supreme Court’s own reasoning, the executive in these cases showed no constitutional application of mind — unless the raw exercise of presidential power to withhold a decision on a mercy petition can be considered as such. These delays cannot be explained as procedural lapses: clearly, some governors and presidents were personally in favour of the abolition of the death sentence.
Further, the court itself cites the study by Bikram Jeet Batra and others, reflecting the vast fluctuations in the exercise of executive clemency powers. They reveal that until 1980, mercy petitions were decided in a minimum of 15 days and a maximum of 10-11 months and from 1980 to 1988, it took about four years. Delays going up to 12 years now seem to be the norm.
Instead of issuing guidelines even in these circumstances, the Supreme Court only “requests” the “concerned ministry to follow its own rules rigorously”. If the president just keeps the mercy petition pending, however, neither the ministry nor the council of ministers can do more than request the president to act. The Supreme Court should have constructed a timeline within which the entire process would have to be completed. Outside this timeline, the sentence would be automatically commuted.
On solitary confinement, the view of the Supreme Court has been made crystal clear: it is not permissible under the Constitution and the law. The court now further clarifies that a person may not be put in such confinement unless and until she is under a “finally executable death sentence”. Yet, the same “requesting” vein continues in the court’s comments on solitary confinement. The ruling on the Sunil Batra vs Delhi Administration case had declared such confinement unconstitutional and “against society’s human essence”. The present court recognises that “the actual implementation… is far from reality”. Yet it merely puts forward a request, urging “jail authorities to comprehend and implement” the decision. This is even more bewildering when we consider that Sunil Batra was decided on in 1979. Article 21 mandates a judicial order, not a judicial tendency to request the executive.
The Supreme Court deserves national gratitude for clarifications on the clemency law and the practice of it. It also deserves our gratitude for saying that those who are mentally ill shall not be executed and their death sentences shall be commuted to life imprisonment. This was an obscenity in criminal law that had long awaited removal. We are still waiting for the day, not too distant now, when we hear the Supreme Court declare the death penalty itself unconstitutional.
The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi