NOT HANGING BY A THREAD
On February 4, the Supreme Court reserved its verdict on a plea by the three assassins of former prime minister Rajiv Gandhi who sought commutation of their death sentence. They were sentenced 11 years ago. In a judgment delivered two weeks earlier, on January 21, in the case Shatrughan Chauhan & others vs Union of India & others, the Supreme Court commuted to life imprisonment the death sentences it had previously awarded to 15 people. I was the state prosecutor who had secured the death sentence for eight of them. I unreservedly welcome this verdict. A sentence of death, even if it is appropriate punishment when imposed, is not valid constitutionally if given effect after a long time.
Several eminent jurists such as Lord Scarman and Geoffrey Robertson have weighed against delayed execution. Examining the issue in his book The Justice Game, Robertson describes a visit to his client Michael X, a black power activist of the late 1960s who was executed in 1975. “I was taken to visit him, in the way one might be taken by a zoo keeper to see the rarest specimen in a monkey house,” he writes. “There were thirty men, sweating in the heat, fingers scratching through the wire of their concrete floored cages, screeching and shouting at each other and at the wardens. Some prisoners were obviously mentally disturbed, while others merely raged. Michael alone was quiet and self contained. ‘We hear the flying of the trap; we hear it distinctly,’ Michael told me. The rest is not silence: on death row the screaming rage begins again, at the loss of a fellow inmate whose body meanwhile twists slowly to and fro, suspended through the open trapdoor. Michael discussed all this, softly and carefully, as if an observer at his own ritual slaughter, pleading in his eyes. He was now a different man, the man whom the state of Trinidad planned to kill was not the same man who with angry calculation had killed another.”
Nearly 22 years after the execution of Michael X, the Privy Council set right the error of law in its verdict in Earl Pratt vs AG for Jamaica. “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time,” the council ruled. “If capital punishment is to be retained it must be carried out with all possible expedition.”
The Indian judiciary has also wrestled with this question. In 1983, in Vathheswaran’s case, the Supreme Court set a two-year limit for execution of the death sentence but in 1989, in Triveniben case, a constitution bench left it open-ended. The bench ruled that “undue long delay in execution of the sentence of death will entitle the condemned person to approach this court, but the court will only examine the nature of delay and will have no jurisdiction to re-open the conclusions reached by it while maintaining the sentence of death”.
India’s record of delayed death sentences is largely due to the predilections of its Presidents. APJ Abdul Kalam famously questioned the home ministry officials as to why only the poor were being hung. His successor, Pratibha Patil, too moved slowly on mercy pleas though towards the end of her term, she rejected five pleas, including of Rajiv Gandhi’s assassins, Mahendra Nath Das of Assam and Devinder Pal Singh Bhullar of Punjab. To her credit, she commuted death penalties of 23 people, making her the most merciful president in 30 years. Pranab Mukherjee rejected the mercy plea of Ajmal Kasab; not a difficult call to make being as he was the face of the 2008 Mumbai attack. Mukherjee then sent Afzal Guru to the gallows and rejected several other pending pleas on the home ministry’s advice, prompting the petitioners to again move the Supreme Court.
In 2013, a bench of the court headed by Justice G.S. Singhvi commuted the sentence of Das on the grounds of delay but refused to grant the same to Bhullar because he had been sentenced for terrorism. The January 21 judgment does away with that distinction, holding the Bhullar verdict to be an error. It examines the delay in each of the 15 cases and gives reasons why each can no longer be executed. “If there is undue, unexplained and inordinate delay in execution due to pendency of mercy pleas or executive and constitutional authorities have failed to take note of the relevant aspects, this court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence on this ground alone after satisfying that the delay was not caused at the instance of the accused himself.”
The court has reminded itself and us that “retribution has no constitutional value in our democratic country. In India, even an accused has de facto protection under the Constitution and it’s the court’s duty to shield and protect the same”.
A sentence of death, even if it is appropriate punishment when imposed, is not valid constitutionally if given effect after a long time.