The Allahabad High Court, which commuted the death sentence of Nithari killings convict Surender Koli, 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 for death convicts, filed under Article 161 of the Constitution. Surely, a matter as serious as one impinging upon the Right to Life 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 has pointed out the following lapses:
* 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. Later, the Prison department realised this GO applied only to those convicts who were on the death row.
* The principal secretary (Home) admitted in writing that he did not have the jurisdiction and competence to make recommendations on a mercy petition. Yet, the court found that he made a firm recommendation, saying Koli should not be granted mercy plea.
* The Law department, which should have dealt with the matter in detail, went by the recommendation made by the principal secretary (Home), which was invalid.
* The legal advisor to the Governor submitted that the findings arrived at by the courts regarding guilt, conviction and quantum of sentence of the convict was ‘binding’ on the Governor. The court said such an advice 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 — May 7, 2011 to August 2, 2014 — the state government took two years and two months, while the Centre 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 prison authorities 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 petition ought not to be prolonged unduly.”
* The court also took into account the plea of the petitioners that Koli had, in violation of Constitutional provisions, been kept in solitary confinement since he was first convicted and handed death sentence in 2009. 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.
* The court 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.
* The court rejected the plea of 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 Right to Life.
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