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--------------- Print Magazine --------------
  May 2016
  April 2016


Political Executive Holds the Key

Hemant Kumar, Advocate
Although in Bhullar’s case recently, the Supreme Court ruled that delay caused in the disposal of his mercy plea by President cannot be a ground by itself for commutation of his death sentence to life imprisonment, the moot point is, would this proposition laid down by the Court operate as an impediment for other similarly placed death row convicts too who have been awarded capital punishment but in cases “other than TADA or similar statutes” ? Nevertheless, even after complete finality of a death sentence it is always the “political executive” which assumes real power in deciding the fate of a condemned prisoner.

On April 12, 2013 a Bench of the Supreme Court comprising Justices GS Singhvi and SJ Mukhopadhaya dismissed Khalistan Liberation Front (KLF) terrorist Devinder Pal Singh Bhullar's plea for commutation of his death sentence to life imprisonment on ground of "inordinate delay" caused in deciding his mercy plea by the President of India. Pertinent to mention that the Apex Court had reserved its verdict on his petition nearly a year back on April 19, 2012. In the intervening period, executions in respect of certain others on death row, who too suffered such delay, were also stayed awaiting pronouncement on Bhullar's petition.

Though the much awaited judgment of the Apex Court on face apparent appears to have redressed a vexed issue which eventually paves the way for the expeditious hanging in respect of dozen and a half death row convicts in line of waiting, one does wonder would merely a "Judicial fiat" by the highest court of the land be sufficient for ensuring the executions of all those primarily because in our country, which is the world's largest democracy, the political executive has to take every step very cautiously with due assessment and weighing of impending repercussions which are due to erupt in the aftermath of such courageous decision.

Grave apprehensions of disturbance to law and order situation within the country coupled with threat to communal harmony owing to vociferous protests by radical groups apart, carrying out of such a long list of executions in one go is sure to seriously impair India's image of being a welfare state at the global stage particularly at a time when worldwide, the trend is building against the imposition of death penalty.

The annual report titled "Death Sentences and Executions 2012" released by Amnesty International recently shows that 174 of the 193 member states of the United Nations were execution free in 2012. Further, only 5 of the 54 member states of the Commonwealth viz. Bangladesh, Botswana, Gambia, India and Pakistan are known to have carried out executions last year.

In 2012, India carried out its first execution after a gap of over eight years. On November 21, 2012 Ajmal Kasab, a Pakistani militant convicted for his involvement in November, 2008 Mumbai terror attack was hanged followed by execution of Afzal Guru on February 9 this year who was convicted for December, 2001 attack on Indian Parliament.

One thing common in both these cases which has also been criticized harshly by civil society especially human rights activists is that they were executed in a highly clandestine manner and the news regarding the same was publicly announced only after it was carried out. Even a communication by speed post sent by jail authorities to the family of Afzal was received couple of days after he was hanged. This questionable goof up raised such a storm that even the Chief Justice of India (CJI), Justice Altamas Kabir recently advocated that the family members of death row convicts should be informed as to when the execution is going to happen.

Justice Altamas Kabir, Chief Justice of India during a recent Chief Justices and Chief Ministers conclave. " If a death penalty is to be awarded and it is there under the system, then the quicker things are done the better it is for everybody."

Amidst the present state of affairs, it seems highly unlikely that pending cases of executions would be carried out soon. One must recall how in March 2012 hanging of Balwant Singh Rajoana, who was convicted and sentenced to death in connection with assassination of a former Chief Minister of Punjab was stayed at the eleventh hour by the Union Home Ministry until disposal of his mercy petition by the President.

Pertinent to mention that although he had not preferred any such plea just before his execution, SGPC, a Sikh organization filed the same seeking clemency for him. On the same lines, the same organization and other Sikh radical groups are now also vociferously demanding for commutation of the death sentence of Bhullar particularly citing his mental condition. The SGPC has now filed second mercy plea in Bhullar's case , inter alia, citing this ground. Even politicians in Tamil Nadu cutting across party lines are advocating the same commutation in respect of three death row convicts in Rajiv Gandhi assassination case.

Hence, one may conclude that notwithstanding the endorsement of a death sentence by the top court of our judicial hierarchy followed by rejection of clemency plea by the President and even thereafter, dismissal of petition citing delay occurred in the latter exercise, the hard reality is that the execution of death sentence would continue to remain a herculean task in our country especially in respect of those behind whom certain political groups or organizations throw their weight. One wonders if the Apex Court can direct the appropriate government(s) not to adopt dilly dallying tactics in carrying out of executions which have attained finality?

Be that as it may, if Bhullar's ruling is perused thoroughly, one finds that one of the questions framed for adjudication by the Bench was whether "the parameters laid down by the Constitution Bench in Triveniben's case for judging the issue of delay in the disposal of a petition filed under Article 72 or Article 161 of the Constitution can be applied to the cases in which an accused has been found guilty of committing offences under TADA and other similar statutes?"

Although the question was answered in the negative by Justice Singhvi who also authored latest Bhullar's judgment ( see box ), the same also gives rise to a point that the law laid down in Triveniben still holds good in respect of those death row convicts who have been convicted and sentenced to death in cases other than those as referred above but who have suffered the same kind of "inordinate delay" in the disposal of their mercy petitions.

"We are also of the view that the rule enunciated in Sher Singh's case, Triveniben's case and some other judgments that long delay may be one of the grounds for commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes. Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes." Justice GS Singhvi in DPS Bhullar's case ( 2013)

Moreover, Smt Triveniben v. State of Gujarat, AIR 1989 SC 1335 is a Constitution Bench Judgment of the Supreme Court wherein the Court though leaned towards the view that there could not be hard and fast rule on what constitutes a delay so unacceptable that a death sentence be converted to one of life, did note that the only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the executive. Hence, a Two Judge Bench in Bhullar's case can overrule the proposition what has been clearly laid down by a 5 Judge Bench in Triveniben's case .

After a news report was published recently which stated that incumbent President Pranab Mukherjee has rejected nine mercy pleas in as many months of his tenure thus sanctioning executions in respect of 14 convicts including a woman, Asian Centre for Human Rights (ACHR) lambasted that the President has reduced his office to a rubber stamp of the Ministry of Home Affairs (MHA) while rejecting mercy pleas of the death-row convicts purely as per the advice of the MHA. Last year too, there were widespread reports in the media over then President, Pratibha Patil, showing an undue haste in disposing pending clemency pleas and commuting the death sentence of a whopping number of condemned prisoners.

In this regard, it is noteworthy to mention that Article 72 of the Constitution does confer on the President the power to grant mercy, but in the exercise of these powers, the President is not supposed to act on his or her own judgment but is mandated to act in accordance with the aid and advice of the Government in terms of Article 74 of the Constitution. The advice of the Government is binding on the Head of the State. This has been authoritatively laid down by the Supreme Court.

Well, the incumbent President indeed deserves a due applause for quick disposal of the mercy petitions of death row convicts pending in his office contrary to the practice prevailed during the tenure of some of his predecessors. Of course, under the present state of affairs, the President can at the most sent a recommendation by MHA in respect of a mercy plea for re-consideration, but in the event of its reiteration, the President is duty bound to accept the same. The only thing he/she can do is to keep it pending for inordinate time period as no time limit has been prescribed for the same.

It is indeed an irony that whether the Head of the State displays any expediency in handling clemency pleas or else sits over the same for years, questions are always raised over the manner of the exercise of clemency power.

Last but not the least, the debate over vexed emotive issue continues unabated whether capital punishment be retained or else abolished from our statute book ? Notwithstanding the global trend against death penalty with gradual increase in the number of countries every year who have abolished the same in law and practice, there seems no chance at least in near future that India would too emulate the same. On the contrary, in November, 2012 India joined the group of few other countries like US, China, Japan, Iran, North Korea etc. in voting against the UN General Assembly resolution calling for the abolition of the death penalty.

Even the recently enacted Criminal Law (Amendment) Act, 2013 has provisions of inflicting death sentence albeit in a couple of situations notwithstanding the fact that Justice JS Verma Committee whose report preceded this legislation had not recommended capital punishment at all. Moreover, in view of unabated sexual violence, voices are again being raised for prescribing death penalty in heinous cases of Child rape.

Thus, one may conclude that our political executive on the one hand desires to retain death sentence in our penal law(s) but on the other hand also wants to keep within its ambit "VETO" power with respect to carrying out executions.

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