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Minutes on death row

SC’s concern about sitting on mercy petitions is long-held and nuanced....

Written by MADHAV KHOSLA |
September 25, 2009 12:39:01 am

The Constitution protects several rights,including those of prisoners. Last week,the Supreme Court’s stern warning about expeditious disposal of mercy petitions revisits an issue the government is trying hard to ignore. Struggling to dispose of mercy petitions,the excessive delay on behalf of the government has compelled the judiciary to step in. Much ink is expended lamenting the delays in our justice system,and factors such as limited recourses and insufficient judges are often cited in response. But how do we account for the government taking over a decade to decide mercy petitions?

The delay in deciding on mercy petitions raises deep constitutional issues. Article 21 of the Constitution,which guarantees the right to life,applies to all stages of the legal process,not just the trial. For over three decades,“life” has been interpreted liberally and Article 21 has been held to apply to both legislative and executive action.

In Triveniben vs State of Gujarat (1989),the Supreme Court underscored the protection that Article 21 provided to prisoners. Cases of inordinate delays in the execution of a sentence would invite scrutiny under Article 21,and unjustifiable delays would alter the death sentence to life imprisonment. However,the court declined to provide a fixed period of delay that would convert the sentence; the issue would turn on the specific circumstances for the delay.

The rationale for granting protection against an inordinate delay is twofold. Most significantly,such a delay has serious mental and psychological implications; it is both an act of cruelty and a form of torture. In addition,the law posits that persons in appropriate cases should receive either the death penalty or life imprisonment. An inordinate delay seems to provide both forms of punishment.

Triveniben was not a case dealing with mercy petitions and the government’s power to grant clemency under Articles 72 and 161 of the Constitution. However,the court did observe that when “petitions under Article 72 or 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expeditiously”. It further emphasised that the principle of converting sentences would apply equally to mercy petitions,and that the time measured would be “the delay in disposal of the mercy petitions or delays occurring at the instance of the executive”. The few liberal democracies that still support capital punishment emphasise that it must be conducted with minimal cruelty. Triveniben makes it clear that keeping prisoners indefinitely on death row is in flagrant violation of this constitutional morality.

Although Afzal Guru’s mercy petition has attracted the most public attention,it is but one of 26 petitions. Some have been pending for over a decade. In certain cases (such as Afzal Guru’s),there could be important questions to consider regarding the soundness of the conviction. But Afzal was convicted as early as 2001,suggesting that the government’s reluctance to decide may be motivated more by political factors than legal complexities. In last week’s decision,Supreme Court Justices H.S. Bedi and J.M. Panchal reminded the government of the “dehumanising effects of the lengthy imprisonment prior to the execution”. They further warned against the usage of prisoners “as pawns in furthering some larger political or government policy”. If the government waits long enough,constitutional principles would empower the Supreme Court to convert several death sentences to life imprisonment. Ironically enough,placing the decision in someone else’s hands could well be what the government wants.

Deciding on certain mercy petitions is perhaps tricky,and the government’s decision could alienate some sections of the electorate. Yet the shocking delay that the apex court highlighted tells us a great deal about how the government views constitutional principles and fundamental rights. It is one thing for the government to test political limits,quite another to test legal ones. As the philosopher Ronald Dworkin once noted,“We must not confuse strategy with justice,nor facts of political life with principles of political morality.” Many have elaborated on how the delay in determining mercy petitions such as Afzal Guru’s is politically motivated and deeply unprincipled. As the Supreme Court clarified,it’s also unconstitutional.

The writer is a law student

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