Tag: mercy petition
Supervening circumstances and the commutation of a death sentence: A more definitive law from the Supreme Court
No Comments on Supervening circumstances and the commutation of a death sentence: A more definitive law from the Supreme Court
If the situation that prevailed at the time a sentence of death was delivered has changed, can the Supreme Court take those changed circumstances into account to commute a sentence of death? Less than two years ago, the Supreme Court in Shatrughan Chauhan v. Union of India, 2014 (3) SCC 1, looked into whether executing a death sentence notwithstanding the existence of such supervening circumstances would violate among other things, Article 21 of the Constitution. After weighing such circumstances in different petitions, it commuted the penalty of fifteen individuals to life imprisonment and laid down a more definitive law on the Court's power of commutation.
The petitioners had claimed that the executive, while exercising its power under Articles 72 or 161, did not consider any supervening events. In a few previous decisions such as Triveniben (1989) and Jagdish v. State of Madhya Pradesh (2009), the Court had declared that it had a duty to protect a prisoner's right to life till his last breath. This provided the Supreme Court with the legal basis to take supervening circumstances into consideration and those pleaded in Shatrughan Chauhan included delay, insanity, solitary confinement, and procedural lapses.
Delay in processing mercy petitions
The question of whether the executive's delay in processing a mercy petition should be considered a supervening circumstance has troubled the Court for a long time. There is no stipulated time limit within which the executive has to dispose a mercy petition and often, there is inordinate delay.
Earlier, a division bench of the Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361, had held that a delay of two years in execution of a sentence after the judgment of the trial court would entitle the prisoner to plead for commutation of his sentence of death to life imprisonment. Soon after however, a three-judge bench in Sher Singh and Others v. Union of India, AIR 1983 SC 465, held that delay alone could not be a good enough ground for commutation of death sentence, and overruled the two-year delay rule. Nevertheless, this decision acknowledged a prisoner's right to a fair procedure at all stages – trial, sentencing, and incarceration.
To resolve this apparent conflict, a constitution bench took up this issue in Triveniben v. State of Gujrat, 1988 (4) SCC 574. In a landmark verdict, the Court held that while an undue delay would entitle a punished individual to invoke Article 32, Vatheeswaran's "two-year delay rule" was not correct.
The Court relied on this decision in Shatrughan Chauhan. It held that while considering the rejection of a clemency petition, the Court could not overlook the pain caused to the convict. Therefore, the Court was well within its judicial power under Article 21 read with Article 32 of the Constitution to hear a convict's grievance and commute a death sentence to life imprisonment if it is found that that there had been undue, unexplained, and inordinate delay in execution due to the pendency of a mercy petition.
The Court decided not to lay down any compulsory period within which the President has to decide a mercy petition. While the Court would make such a determination on the facts and circumstances of individual cases, it suggested that the executive should itself weigh the aspect of delay while disposing of a mercy petition.
The Court also said that the decision of the Court in Devender Pal Singh Bhullar v. State (NCT) of Delhi, 2013 (6) SCC 195, which had disqualified cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 from scrutiny on account of delay, was per incuriam. Any person sentenced to death could avail "delay" as a supervening circumstance regardless of the offence and the statute under which he has been convicted. Later, the Supreme Court recognised this finding in Navneet Kaur v. State of NCT of Delhi, Curative Petition (Criminal) No. 88 of 2013 (Supreme Court) to commute Devender Pal Singh Bhullar's death sentence to life imprisonment.
Insanity or mental illness
The next ground considered by the Court was that of "insanity" or "mental illness" as a supervening circumstance. The Court after referring to several international conventions like the International Covenant on Civil and Political Rights concluded that this was a valid supervening circumstance. It noted that once mental illness of the convicted individual is medically certified, executing him would be in violation of the international convention to which India was a party, and of Article 21 of the Constitution.
Despite underlining its own finding in Sunil Batra v. Delhi Administration and Others, 1978(4) SCC 494, the Supreme Court decided not to interfere on the ground of "solitary confinement" in Shatrughan Chauhan. Later however, the Allahabad High Court in People's Union for Democratic Rights v. Union of India, 2015(2) ADJ 2015 and the Supreme Court in Ajay Kumar Pal v. Union of India, 2014(13) SCALE 762 held that "solitary confinement", along with other factors, was a permissible supervening circumstance to commute death sentence to life imprisonment.
Procedural lapses
The final ground raised was that of "procedural lapses" made by the executive while disposing of mercy petitions. The Court held that the procedures prescribed for the Ministry of Home Affairs were a necessary requirement under Article 21 to treat the death row convicts fairly. It noted that the President should be provided with all the relevant material to assist him in disposing the mercy petitions. The concerned departments cannot give or seek piecemeal information regarding the petition to be decided. However, the scrutiny of a procedural anomaly would be done on a case-to-case basis.
The circumstances raised in Shatrughan Chauhan are not exhaustive. The addition (or removal) of supervening circumstances to this list would depend on the judicial attitudes to reconciling convict's rights with those of the victim or the society. Further, despite the unambiguous decisions in Triveniben and Shatrughan Chauhan, it is entirely up to the Court to see on an individual basis, how to interpret 'undue and unexplained' delay and whether to permit it as a supervening circumstance.
(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)
Tags commutation of death sentence, criminal procedure, death penalty, Death Penalty Procedure, death sentence, human rights, mercy petition, solitary confinement, supervening circumstances, Supreme Court
Human Rights Supreme Court of India
In light of persistent executive failure, judicial review is an effective check on exercise of mercy powers
No Comments on In light of persistent executive failure, judicial review is an effective check on exercise of mercy powers
The President of India exercises mercy powers under Article 72 of the Constitution of India and the governors do it under Article 161. Historically seen as private acts of grace, clemency powers are now constitutionally guaranteed rights and consequently, must be exercised with a great degree of responsibility.
Does any relief remain after the President or a governor exercises these powers? Or are all remedies exhausted? The Supreme Court of India has in several decisions analysed these questions and answered that the courts have the power to judicially review the exercise of mercy powers but that this power is extremely limited. In exercise of their powers of judicial review, the courts do not sit in appeal over the decisions of the President or governors but can only examine the manner and materials relied upon to reach the conclusion.
In Shatrughan Chauhan v. Union of India and Others, the Supreme Court considered and consolidated much of the jurisprudence on the judicial review of mercy powers in India in relation to prisoners on death row. The Court held that the exercise of powers under Articles 72 and 161 are essentially executive actions and therefore amendable to judicial review. It held that while the decision of the President or a governor is per se beyond judicial scrutiny, what can be reviewed is the material that was relied on to arrive at the conclusion. The scope of the judicial review of decisions taken by high constitutional functionaries has to be balanced with the right of prisoners to seek executive clemency.
The Law Commission of India in its 262nd Report has listed, after an analysis of various judgments of the Supreme Court, the various circumstances in which the judicial review of the exercise of mercy powers is permissible. This includes (1) where the power is exercised without being advised by the government, (2) where there has been a transgression of jurisdiction by a governor or by the President, (3) where there is non-application of mind or mala fides, (4) where power has been exercised on political considerations, (5) where there is arbitrariness, and (6) where irrelevant considerations have been considered or where relevant material has been left out.
The file's journey
To find out about what has been considered and what has been left out, it is necessary to track the movement of the mercy petition file. While procedures in individual cases may vary according to the law under which a person is convicted, The prisoner's petition usually finds its way to the Home department of the concerned state. The state government then gives its advice to the Governor, who then decides the petition based on this recommendation. Thereafter, the file is sent to the Union Home Ministry which in turn sends its recommendations to the President of India and then the President herself takes a decision. Often, this involves a long chain of correspondence between various government agencies including prisons. Usually, with a change in government, the files are sent back by the President for consideration by the new government. While the Supreme Court has recommended that this entire process should be concluded within three months, in many cases, it has taken over a decade.
The objective is to present a full picture to the Governor and the President so that they may decide on the plea beyond the strictly judicial plane. But often, there are lapses in procedure or important materials are either accidentally or deliberately left out and irrelevant factors are considered.
Errors in exercise of mercy jurisdiction
For instance, in Epuru Sudhakar's Case, the Supreme Court set aside a pardon granted by the Governor because extraneous circumstances, such as the convict "belonging to an upper caste" and "being a good Congress worker", had been considered.
In Shankar Kisanrao Khade's Case, the Supreme Court admitted that Dhananjoy Chatterjee's case had been wrongly decided. He was hanged in 2004 after the President rejected his mercy petition. The court had not considered the mitigating circumstances properly. Much emphasis was laid on the circumstances of the crime rather than the circumstances of the criminal. In its 262nd Report, the Law Commission also said that the Governor rejected Dhananjoy Chatterjee's petition without taking into consideration the mitigating circumstances.
The Law Commission report also discussed Bandu Baburao Tidke's case, where the President commuted the death sentence to life imprisonment in 2012 when the prisoner had actually died in jail in 2007. This incident demonstrated the complete non-application of mind and the failure to consider or even call for records from the prison where the prisoner was lodged in, as they would have shown that the prisoner was already dead.
Is there a right to judicial review of a decision made in a second mercy petition?
Most recently, Yakub Memon's case seemed to change the jurisprudence to some extent. It may even be seen as having curtailed the judicial review of mercy petitions. Initially, Yakub Memon's brother had filed a mercy petition and it was rejected in 2014. After a review petition was dismissed in 2015, a warrant was issued fixing a date for execution. After that, a mercy petition was filed before the Governor and thereafter before the President. The President rejected the mercy petition around 10 pm on the night before the date on which the execution had been scheduled for 7 a.m. While a stay was sought on the execution so that he could seek the judicial review of the rejection of his mercy petition, the Supreme Court refused to stay it. It held that since the rejection of the first mercy petition in April 2014 had not been challenged, the prisoner could not avail of the period of 14 days after the rejection of his second mercy petition. In effect, this deprived him of the opportunity for the judicial review of the rejection of his mercy petition. The decision seems to be at odds with the decision in Shatrughan Chauhan's Case, which was decided by a bench of the same strength. Therefore, the question of the maintainability of a second mercy petition and the right to the judicial review of a decision made in a second mercy petition needs to be adjudicated by a larger bench.
The problem of secrecy
There have also been cases where the President of India has conditionally commuted death sentences. Sometimes, these conditions may be excessively harsh and would amount to a punishment greater than what the courts have the power to prescribe. Previously, several Presidents would record specific reasons on file for taking the decision to accept or reject the mercy petition. Of late however, the Presidents only signs off on the government's recommendation and no reasoning is provided. While it is not open to question the final decision, it is important to ensure that the decisions taken by the highest of constitutional authorities are not whimsical, are based on relevant material, and are reasoned decisions. In the constitutional set-up, it should be noted at this point that governors and the President act only on the advice of the government and cannot act independently.
Effective checks on executive failures
In view of executive failures, some of which have been illustrated above, we can see the need for stringent judicial review in cases where the death penalty has been imposed. While the judiciary cannot provide a foolproof solution, it acts as another check where the consequences of the punishment are final and irreversible. It is also necessary that the judiciary, in reviewing the executive action, fix responsibility on erring officials in the executive so that there is accountability for deliberate or negligent omissions in placing materials before a governor or the President. The executive should also lay down norms for decisions in mercy petitions and not only in capital punishment cases. Currently, guidelines only exist on mercy petitions in death sentence cases. These guidelines however, do not take into account recent judicial decisions. After all, under the law laid down by the Supreme Court in Kehar Singh's case, it is not for the judiciary to law down guidelines for the exercise of mercy powers. The judiciary can only step in to ensure that the powers are "exercised in the aid of justice and not in defiance of it."
(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The Clinic represented was an intervenor in Yakub Memon's case. The views expressed in this article are those of the authors alone.)
Tags death penalty, Death Penalty Procedure by Lubhyathi and Nishanth, Governor, judicial review, mercy petition, President of India
The Shabnam guidelines and why the convict's lawyer should be given notice of death warrant proceedings
No Comments on The Shabnam guidelines and why the convict's lawyer should be given notice of death warrant proceedings
When Yakub Memon was executed recently, there was some confusion about "death warrant" or "black warrant" proceedings. They were also controversial in previous cases such as that of Mohammed Afzal Guru where the spectre of a secret execution haunted the government and that of Surinder Koli where three warrants, containing a range of dates within a week, were under challenge.
Upon a conviction at the end of a criminal proceeding, the sentencing court or the trial court has to issue a conviction warrant to the relevant jail. This warrant specifies the period of imprisonment to which the convict has been sentenced.
In cases where the death sentence is awarded, it is formally called a "warrant for execution of a sentence of death". Form No. 42 in the Second Schedule of the Code of Criminal Procedure, 1973 contains the form of the "death warrant" or "black warrant". It is addressed to the superintendent of the relevant prison who is supposed to return the warrant to the court after certifying that the death sentence has been carried out.
When can a death warrant be issued?
The court which imposed the sentence of death at the first instance (that is, the trial court) has the power to issue the death warrant under the CrPC. Sections 413 and 414 of the CrPC state that upon the high court confirming a death sentence, the sessions court shall cause that order to be carried into effect by issuing a warrant. In practice however, since an appeal lies to the Supreme Court against a death sentence, a sessions court would normally refrain from issuing a death warrant.
Even if the Supreme Court confirms the death sentence, there are several other remedies available to a prisoner to challenge the death sentence such as review and curative petitions, and mercy petitions under Articles 161 and 72.
And today, if a sessions court issues a death warrant before the end of the judicial and administrative process, it would amount to a serious violation of the law as laid down by the Supreme Court in Shabnam v. Union of India (2015) which affirmed the guidelines laid down by the Allahabad High Court in PUDR v. Union of India (in which the death sentence meted out to Surinder Koli was commuted to life imprisonment).
The guidelines in Shabnam arose out of a case in which death warrants were issued against two prisoners currently on death row – Shabnam and Saleem. The Supreme Court had confirmed their death sentences on May 15, 2015. A mere six days later, a sessions court in Uttar Pradesh issued death warrants against them stating that the execution should be held "as soon as possible". No date, time, or place was specified on the warrants. This omission was already in violation of PUDR, a judgment that this Sessions Court was bound by. Further, Shabnam and Saleem were yet to exhaust several other remedies available to them.
In Shabnam, the Supreme Court held that the principles of natural justice have to be read into death warrant proceedings. A convict has to be given prior notice of the death warrant proceeding. The warrant has to specify the exact date and time of execution and not a range of dates. There should be a reasonable period of time between the date of the order on the warrant and the date set for execution to enable the convicts to meet their families and pursue legal remedies. Copies of the execution warrant should be made available to the convicts and they should be given legal aid at these proceedings if they do not already have a lawyer. These guidelines now need to be mandatorily followed in all cases where death warrants are issued.
When a death warrant was issued against Yakub Memon on April 30, the Shabnam guidelines were not yet in force. However, once Shabnam was decided, the Maharashtra government ought to have recalled the death warrant and initiated fresh proceedings to ensure that the rule laid down in Shabnam was satisfied. Most importantly, Yakub (lodged in a jail in Nagpur) and his lawyer should have been present at the proceedings that were held before a Mumbai court.
The guideline that a death warrant cannot be issued unless all available remedies are exhausted also needs to be seen in light of the contemporary jurisprudence on the death penalty. So after Shatrughan Chauhan v. Union of India (2013), a convict's challenge to the rejection of his mercy petition is one of the available remedies.
Why are death warrants and their proceedings significant?
Shabnam has now held that holding a death warrant proceeding in open court with prior notice is vital to ensure that there is no secrecy or arbitrariness around executions. It enables the lawyer and the prisoner to ensure that the sentencing court is aware of pending proceedings challenging the conviction and sentence, if any.
For instance, the constitutional bench decision in Md. Arif@ Ashfaqv. The Registrar, Supreme Court of India allowed for an open court hearing of a review petition in all death sentence cases. In the Shabnam case, the sessions judge was unaware that neither Shabnam nor Saleem had had the opportunity to exercise their right to pursue this particular legal remedy, and instead, issued death warrants in haste. Such a situation could have been avoided if their lawyers had been informed of these proceedings.
Similarly, Shatrughan Chauhan now gives prisoners on death row the right to challenge the rejection of their mercy petitions by governors or the President through the writ jurisdiction under Articles 226 and 32. The Court also prescribed a minimum 14-day period between the receipt of the communication of the mercy petition being rejected, and the scheduled date of execution for two main reasons: (a) to allow the convict to make his peace with God and settle his earthly affairs and (b) to meet his family and avail of judicial remedies.
A court vested with the power to issue a death warrant must examine the case before it through a judicial lens and not view it as a mere formality and it may, if it finds that a prisoner has not yet exercised these judicial and administrative remedies available to them, postpone the setting of a date of execution. This purpose may not be served merely by having a lawyer who would not necessarily know if the convict has availed of his legal remedies. Considering that the majority of Indian death row convicts are illiterate or have had minimal or no access to education, they may not be in a position to inform the lawyer appointed for them, of proceedings initiated on their behalf. The convict's lawyer therefore, should be given notice of the death warrant proceedings.
(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The clinic represented Shabnam and Saleem before the Supreme Court in Shabnam v. Union of India and was an intervenor in Yakub Memon's case.)
Tags death penalty, Death Penalty Procedure by Lubhyathi and Nishanth, death warrant, mercy petition, Shabnam v Union of India
Delay in deciding mercy petitions as a ground for commutation – did the judiciary exceed its brief?
No Comments on Delay in deciding mercy petitions as a ground for commutation – did the judiciary exceed its brief?
The death sentence, one of the punishments provided under Section 53 of the Indian Penal Code, 1860 is increasingly becoming redundant. By an order dated January 21, 2014, the Supreme Court commuted the death sentence of thirteen convicts on the grounds of inordinate delays in deciding on the mercy petition.
Under Article 72 and Article 161 of the Constitution of India, the President and the governors respectively, have the power to "grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence". Durga Das Basu has stated that the object of the power of pardon by the President of India was to "correct judicial errors for no system of judicial administration can be free from imperfections." This power however, instead of correcting judicial lacunae, has prevented victims from receiving true justice by allowing politics to affect decisions.
The President and the governors have to exercise their power to pardon on the advice of the Council of Ministers. Since the power has not been exercised expeditiously, a large number of mercy petitions are pending with the President of India. This callousness has resulted in unreasonable delays in the execution of the death sentences. Death row convicts languish in jail for more than twenty years under constant fear of death and the subsequent execution of the death sentence is cruel and barbaric.
The procedure commences with the filing of a mercy petition with the President under Article 72 of the Constitution. The petition is sent to the Ministry of Home Affairs in the Union Government ("the Ministry"), where the judicial division has been tasked with giving its recommendations on the petition in consultation with the concerned sate government. Thereafter, the mercy petition, along with the Ministry's recommendations, is sent to the President's Secretariat for a final decision. Sometimes however, even after the Ministry has made its recommendations, the President's Secretariat does not act on the petition for an inexplicably long time.
Afzal Guru was convicted for attacking the Parliament of India in 2001. The Supreme Court confirmed his death sentence on August 4, 2005 and the date for his execution was fixed for October 20, 2006. His wife filed a mercy petition on January 4, 2006 before the President who sent it to the Ministry of Home Affairs on October 4, 2006 for its recommendations. A curative petition filed by Mr. Guru in Supreme Court was disposed of on January 12, 2007. Shivraj Patil, who was the Home Minister of India at that time, while responding to a question about Mr. Guru's mercy petition in the Rajya Sabha said, "After having seen the figures for last ten years, I would like to inform you that no mercy petition has been decided before six years, seven years….". After eight long years, the President rejected the mercy plea on February 3, 2013. Mr. Guru was executed on February 9, 2013. In this entire process, a lot of time is spent in sending the file from one department to another and vested interests and political considerations influence the final decision.
The Supreme Court's January 21 order came in the case of Shatrughan Chauhan and Another v. Union of India and Others, 2014 (1) SCALE 437, where it framed guidelines for safeguarding the interest of death row convicts. Fifteen death row convicts had filed a writ petition seeking relief against the alleged infringement of their fundamental rights on account of the executive's failure to dispose of mercy petitions within a reasonable time. Allowing the writ petitions and commuting the sentence of death of the petitioners to imprisonment for life, the Supreme Court observed that the right to seek mercy under Articles 72 and 161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Therefore, "when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect." Thereafter, the Supreme Court, in February 2014, asked the government to include delay as a criterion in deciding the mercy petition of a death row convict. The Court said that "the clemency procedure "provides a ray of hope" to the condemned prisoners and their family members for commutation of death sentence to life imprisonment. Therefore, the executive should step up and exercise its time-honoured tradition of clemency power guaranteed in the constitution one way or the other within a reasonable time."
The Central Government is likely to file a curative petition against this decision of the Supreme Court. In a more recent decision, Navneet Kaur v. State of NCT of Delhi and Another, the Supreme Court commuted the death sentence of Devender Pal Singh Bhullar, a Khalistani terrorist accused in the 1993 blasts in Delhi, to life imprisonment both on the ground of inordinate delay of eight years in the disposal of the mercy petition and on the ground of insanity. As a result of such leniency, a number of hardcore convicted offenders including the assassins of Rajiv Gandhi and close aides of the forest brigand Veerappan have been freed from the gallows. This has resulted in injustice to the victim or his family members.
The research done by Bikram Jeet Batra, an independent lawyer and researcher, shows that until 1980, mercy petitions were decided within a minimum of fifteen days and a maximum of ten to eleven months. From 1980 to 1988, the time taken for the disposal of mercy petitions gradually increased to an average of four years. Now, we even see delays that extend up to twelve years.
Judicial review of mercy petitions
The Supreme Court has been of the opinion that even though the power of pardon exercised by the President and the Governor is above judicial review, its manner of exercise is certainly subject to judicial review. In Epuru Sudhakar and Another v. Government of Andhra Pradesh and Others, (2006) 8 SCC 161, the Court listed the grounds on which a decision under Articles 72 or 161 may be judicially reviewed. They include:
a. Whether the order has been passed without application of mind,
b. Whether the order is mala fide,
c. Whether the order has been passed on extraneous on wholly irrelevant considerations,
d. Whether relevant materials have been kept out of consideration, and
e. Whether the order suffers from arbitrariness.
The courts therefore, do not interfere with the decision of the executive on merits but retain the limited power of judicial review to ensure that all the relevant materials are considered before the decision is made.
After Shatrughan Chauhan therefore, the question that arises is whether the judiciary exceeded its power of judicial review. The pardoning power conferred on the executive by the Constitution is a discretionary power and the judiciary seems to be curtailing it and substituting it with its own discretion. The solution would be to prescribe a time limit within which the executive ought to decide the mercy petition.
Richa Kaur is part of the faculty at myLaw.net.
Tags criminal law, death penalty, human rights, mercy petition, Supreme Court of India
Koushal — An ADM Jabalpur moment for the Supreme Court
TRAI's media ownership recommendations rest on contested understanding of free speech
A valid reason - On constitutionalism and the removal of governors
Organise into self-governing groups, NLU students, and influence decisions in your college
The role of courts in arbitrator appointments - Patel Engineering and beyond
Law schools cannot do much to improve the efficiency of arguments in courts
How will you respond to the absence of parental control?
The Supreme Court of India - A tip of the hat and much to look forward to in 2014