Opinion At the mercy of the state

The home minister recently said that he would consider afresh the cases of 28 convicts awaiting the death sentence,whose mercy petitions have been lying with the president for years.

October 9, 2009 02:15 AM IST First published on: Oct 9, 2009 at 02:15 AM IST

The home minister recently said that he would consider afresh the cases of 28 convicts awaiting the death sentence,whose mercy petitions have been lying with the president for years. The earliest such petition has been pending since 1998. Chidambaram said that the home ministry would examine cases turn by turn,and each would take 3 to 4 weeks for a decision. In effect,the decisions on these 28 cases would lead to a further agonising suspense for those on death row.

The home ministry exercise will not wipe out the inhumanity with which 28 human beings,even if they be convicted of murders,have been treated. Rather,it will compound the governments apathy and inaction of a type recognised as cruel and illegal by our Supreme Court and other courts in the world.

Amongst the 28 cases is that of Afzal Guru who was sentenced to death by the Supreme Court for his part in the Parliament attack on August 5,2006. This is not simply a case of unexplained indecision,but one with political overtones. He was due to be executed on October 20,2006,when it was stayed on a clemency petition filed by his family. Gurus mental agony is evident from his statement last year I really wish L.K. Advani becomes the next prime minister as he is the only one who can take a decision and hang me. At least my pain and daily suffering will ease then. Of the UPAs ambivalenc, he said I dont think the UPA government can reach a decision. The Congress party has two mouths and is playing a double game.

In 1983,the Supreme Court observed that Article 21 of the Constitution would forbid a convicted person being put to the agony of suspense over his execution. The Court said We must take this opportunity to impress upon the government of India and the state governments that mercy petitions must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously,that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed,such delays tend to shake the confidence of the people in the very system of justice. This admonition of the Court has been ignored by governments.

On September 18 this year,the Supreme Court reiterated the inhumanity of such long agonising suspense,in a telling judgment. A bench of Justices H.S. Bedi & J.M. Panchal this time specifically referred to the relevancy of their observations on 26 pending mercy petitions in some cases for more than a decade:

We must,however,say with the greatest emphasis,that human beings are not chattels and should not be used as pawns in furthering some larger political or government policy… Consider the plight of a prisoner who has been under a sentence of death for 15 years or more living on hope but engulfed in fear as his life hangs in balance and in the hands of those who have no personal interest in his case and for whom he is only a name. Equally,consider the plight of the family of such a prisoner,his parents,wife and children,brothers and sisters,who too remain static and in a state of limbo and are unable to get on with life on account of the uncertain fate of a loved one. What makes it worse for the prisoner is the indifference and ennui which ultimately develops in the family,brought about by a combination of resignation,exhaustion,and despair. What may be asked is the fault of these hapless individuals that they be treated in such a shabby manner.

The moving words of the Court should rankle any government guilty of culpable indecision in deciding mercy petitions. There should be a sufficient justification for immediate commutation of the death sentences to a lesser appropriate sentence in the 28 cases pending with the president,instead of this prolonged decision-making exercise,which would only exacerbate the agony of these convicts on death row.

The writer is a senior advocate in the Supreme Court.