When death warrants don’t mean death

NEW DELHI: All the six death warrants issued in 2019 by courts across the country were eventually stayed or quashed by the Supreme Court or high courts, said an annual statistics report published on Friday by Project 39A at National Law University, Delhi.

A death warrant sets a date for the hanging of a death row convict and is one of the final steps in the execution of a convict. It is usually issued after a convict has exhausted all legal remedies.

Of the six death warrants issued in 2019, one was quashed by the Supreme Court on the grounds that all remedies available to the convict under the law had not been exhausted, the report said. Three other death warrants were stayed by the top court on the same grounds.

Of the remaining two, one was quashed by the Bombay high court on the grounds that it was issued ex-parte. The high court also went on to commute the death sentence of both the convicts to life imprisonment.

One death warrant was stayed by the Madras high court on the grounds that it was not served on the petitioner and that the right of the petitioner to file a mercy petition before the governor was pending. The report came at a time when a death warrant issued against the 2012 Delhi gang-rape convicts has come under the scanner over purported violation of the law laid down by the Supreme Court and the Delhi prison manual, casting a shadow on the efficacy of the process of sending a person to the gallows.

A Delhi court on January 7 issued a death warrant against the four convicts in the case, Mukesh, Akshay, Vinay Sharma and Pawan Gupta, and set January 22 as the date of their hanging. This warrant was issued despite the fact that two of the convicts, Akshay and Pawan, had not yet filed their curative petitions before the Supreme Court. Further, three of them have not availed the right to file mercy petitions before the President. On January 17, the court issued a fresh death warrant resetting the date of hanging as February 1.

Legal experts questioned the correctness of the death warrant, which they said cannot be issued before a convict exhausts all his legal remedies. “The convicts can file mercy pleas before the President, which again must be decided before the death warrant can be executed,” said senior advocate Rebecca John.

“This death warrant is in blatant violation of the Delhi prison manual which is explicit that the sessions court cannot issue a death warrant until the mercy plea is rejected. This also disregards the Supreme Court decisions in Shabnam vs Union of India and Shatrughan Chauhan vs Union of India,” said Dr Anup Surendranath, assistant professor at NLU, Delhi, and executive director at Project 39A.

The report by Project 39A throws light on other aspects concerning death sentences. The proportion of cases involving sexual offences in which death sentence was imposed in 2019 was the highest in the last four years.

Trial courts imposed 102 death sentences in 2019. Of these, the proportion of cases involving sexual offences stood at 52.94%, the highest since 2016 when the university first started tracking death penalty cases.

The report states the proportion of death sentences for sexual offences by sessions courts has been steadily increasing since 2016. High courts in 2019 confirmed the highest number of death penalty cases (26 persons and 15 cases) in four years, with 65.38% of these cases involving sexual offences.

The Supreme Court in 2019 pronounced the highest number of decisions (27) in death penalty cases since 2001, which the report says can be attributed to the listing priority given by then Chief Justice of India Ranjan Gogoi to death penalty cases. The 27 cases in the Supreme Court involved six confirmations, 17 commutations, three acquittals and two being remanded for fresh trial.

Ten people were acquitted of all charges in the three acquittals, where the Supreme Court highlighted the lackadaisical nature of investigation and mala fide prosecution. They had served a maximum of 13 years on death row. Of the 17 commutations, eight were eligible for remission after 14 years, three were sentenced to a fixed term of 25 years, two others for 30 years’ fixed term and four persons for imprisonment for natural life.

The report pointed out a case in which the top court ordered a fresh trial on the grounds that a fast-track trial meant the accused had not received a fair trial. There were 378 prisoners on death row in India as of December 31, 2019.