CJI says death penalty can’t be open-ended

NEW DELHI: Chief Justice of India SA Bobde on Thursday commented on the practice of deathrow convicts filing petitions to delay their executions and stressed that courts should focus not only on the rights of the accused but also of the victims.

CJI Bobde’s remarks are significant, especially because they come a day after the central government approached the Supreme Court seeking a direction on timelines and process for death-row convicts to use curative and mercy petitions. The Centre’s petition was filed against the backdrop of seemingly needless delays in the execution of the four death-row convicts in the 2012 Delhi gang rape and murder case.

The CJI’s comments came while his court was hearing review petitions filed by two convicts, Saleem and Shabnam from Uttar Pradesh who have been sentenced to death for killing seven members of Shabnam’s family.

“We don’t want to place emphasis only on the life and death of the accused. When seven people have been killed including a 10-month old baby, the only focus can’t be on the rights of the accused,” he said.

The central government’s plea urged the court to adopt a victim-centric approach in heinous crimes and set a deadline for filing curative petitions and mercy petitions.

The application by the Centre seeks modifications and clarifications in furtherance of a 2014 judgment of the top court in the Shatrughan Chauhan vs Union of India case which laid down guidelines for safeguarding the interests of death-row convicts.

The two convicts, Shabnam and Saleem, were sentenced to death for sedating seven members of Shabnam’s family and hacking them to death in April 2008 after they had objected to her relationship with Saleem.

A 10-month-old baby was among the seven people murdered. The duo was arrested within five days and sentenced to death by a trial court in 2010. The conviction and sentence were confirmed by the Allahabad high court in April 2013 and the Supreme Court on May 15, 2015. The sessions judge then moved to issue a death warrant on May 21, 2015, barely a week after the Supreme Court dismissed the appeal.

The convicts then filed a writ petition before the Supreme Court which was heard on May 27 by a vacation bench which quashed the death warrant issued by the sessions judge noting that the convicts had not yet availed their remedies to file review and mercy petitions.

The convicts filed mercy petitions before the governor and the president.

After these were denied, they filed their review petitions challenging the May 15, 2015, verdict of the top court.

When the review petitions came up for hearing on Thursday, Chief Justice Bobde remarked that it was extremely important for the death sentence to have some finality. A death row convict shouldn’t feel that the sentence can be questioned all the time, CJI Bobde said, stressing that “one cannot go on fighting endlessly”.

The convicts submitted that the petitioners did not get a real, meaningful and effective opportunity to address the trial court on the aspect of the sentence that should be imposed on them. They argued that the trial court did not make a genuine effort to elicit information from the petitioners, especially the mitigating factors which should be considered before a death sentence is imposed.

Since the court did not have mitigating circumstances before it while handing down the sentence, the rarest of rare test , which is used to determine whether a crime is deserving of the death penalty or not, was not applied, they argued. This error, the petitioners claimed, continued through the appeals before the high court and the Supreme Court.

Further, the petitioners stressed on the probability of reformation.

Saleem dropped out in class 6 and then started working to support his parents and six siblings. While in jail, he completed his Bachelor’s Preparatory Program and Bachelors of Arts degree from IGNOU, certificate courses, and a yoga course from Art of Living, the convicts submitted.

They also pointed out that Shabnam gave birth to their child Taj in prison; he was her till he turned six-and-a-half years old. Taj is now in foster care and regularly comes to meet Shabnam with his foster parents. Shabnam has learnt tailoring, embroidery and knitting in prison. She has earned money through this work which she sends for Taj’s care.

However, the submissions of the two convicts did not find favour with the CJI.

“Every criminal is said to have an innocent heart. However, we have to look at the crime. We are doing justice on behalf of the society. We cannot forgive a convict because it is the law that deals with a criminal, not the judge. Imagine, what would happen if a judge tells a murderer, “I forgive you’,” remarked the Chief Justice.

The bench also sought the views of solicitor general Tushar Mehta who agreed with the CJI and said that if reformation in jails is accepted as a mitigating factor, then no execution can be carried out.

“If such an argument is accepted, then no death penalty can be carried out. They will say they have reformed and can come out. After killing their parents, they cannot argue that they are orphans now and should be shown mercy,” Mehta said.

The court reserved its order in the case.