The Allahabad High Court, which last month commuted the death sentence of Surender Koli, convicted in the Nithari killings, has cited glaring lapses on part of the state government in dealing with his mercy petition.
“Evidently, the state government had no processes and systems in place to deal with or streamline the disposal of mercy petitions filed under Article 161 of the Constitution of death convicts. Surely, a matter as serious as one impinging upon the right to life of a convict cannot be dealt with in such a cavalier fashion,” the court said in its January 28 order, the details of which became available on Wednesday.
The court, which had allowed the petitioner’s counsel to inspect the files related to Koli’s mercy plea, has pointed out the following lapses:
#First, the processing of the mercy plea started on the basis of a Government Order (GO) passed on April 3, 2005, which dealt with grant of pardon by the Governor to convicts. Later, however, the Prison department realised this GO applied only to those convicts who were not handed the death sentence. The subject head of the GO clearly said it dealt with all convicts other than those awarded the death penalty.
#Second, the principal secretary (home) admitted in writing in the file notings that he did not have the jurisdiction and competence to make any recommendation on a mercy petition. Yet, the court found in its perusal of records that he made a firm recommendation, saying Koli should not be granted mercy plea. The court took a serious note of this lapse.
#Third, the Law department, which should have dealt with the matter in detail, simply went by the recommendation made by the principal secretary (home), which was invalid.
#Fourth, the legal advisor to the Governor submitted before him that the findings arrived at by the courts of law regarding guilt, conviction and quantum of sentence of the convict was ‘binding’ on the Governor. The court said such an advice actually prevented the Governor from exercising his Constitutional rights.
#On the issue of delay, the court pointed out that of the three years and three months taken to complete the process of mercy petition – between May 7, 2011, and August 2, 2014 – the state government took two years and two months, while the Union government took one year and 15 days.
#Further, the court pointed out that even the first basic exercise – of the reports being called from district magistrates of Ghaziabad and Gautam Budh Nagar as well as the prison authorities when the mercy plea was first made – took nearly one-and-a-half years.
#Referring to the Jail Manual – which gives seven days to convicts for filing a mercy petition – the court said, “Surely, if such an obligation is cast upon the convict, the least that is to be expected is, a decision on a mercy petition ought not to be prolonged unduly and should be arrived at with all reasonable dispatch.”
#The court also took into account the plea of the petitioners that Koli had, in violation of Constitutional provisions, been kept in solitary confinement ever since he was first convicted and handed death in 2009 by a sessions court. Under rules, a death row convict cannot be kept in solitary confinement until the order attains finality following rejection of mercy petition by the President.
#Further, the court also took into account the wrong issuance of warrants by the Additional Sessions Judge of Ghaziabad, in which, instead of specific dates, a range of dates were mentioned for the execution to take place.
Finally, the court said it was not the quantum of delay that was important, but the reasons for the same. The court also rejected the plea of the state authorities that the gravity of the crime and not only delay should be taken into account on the ground that law dealing with execution of death sentence too has a humanising element and had to be seen in the light of Article 21 (right to life) of the Constitution.
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