DEVELOPING DELAY JURISPRUDENCE VIS-À-VIS DEATH PENALTY UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION

Balwant Singh Rajoana is the prime accused and convicted terrorist for the assassination of Beant Singh (former Chief Minister of Punjab) on 31 August 1995 and was sentenced to death on 1 August 2007 by a special CBI court in Chandigarh. (Bharat Bhushan/Hindustan Times)

Ayush Mishra

Abstract: The Supreme Court recently sought centre’s reply on the mercy petition of Balwant Singh Rajoana, which had been pending for 8 years now. The convict, who received a death sentence for the assassination of the former Chief Minister of Punjab Mr. Beant Singh, seeks commutation of his death sentence due to central government’s inability to decide the mercy petition within reasonable time. This development should also be located in the backdrop of a PIL being filed in the apex court seeking to frame specific procedure and guidelines for the disposal of such mercy petitions in a time-bound manner. Notably, the Constitution of India grants powers to the President of India (under art. 72) and the Governors of various Status (under art. 161) to pardon, suspend, remit or commute sentences in certain cases. However, a problematic situation arises when the executive takes undue time in deciding such mercy petitions which forces the petitioners to spend long times in incarceration under immense mental agony and horror of death sentence. This article pertains to this particular issue that whether such inordinate delay by the executive in disposal of the clemency petition, per se, constitutes a ground for the commutation of the death sentence by the courts. To unravel this conundrum, the article shall trace the developing volatile jurisprudence in this regard with the help of landmark cases of the Supreme Court of India and attempt to provide a historical and holistic perspective to the issue at hand.

Part I: Vatheeswaran to Triveniben

The Supreme Court in T.V.Vatheeswaran vs. State of Tamil Nadu (1983) constituted a Division Bench comprising Justice O.Chinnappa Reddy and Justice R.B. Misra to decide whether delay in the execution of death sentence offends the constitutional guarantee recognized in article 21 of the Constitution and thereby entitles a person under death sentence to claim its replacement by the sentence of life imprisonment? Justice Chinnappa Reddy delivered the judgement for the bench and held that prolonged delay in execution of death sentence is inhuman, unjust, unfair and unreasonable, and it, therefore, deprives a person of his life in an unjust, unfair, and unreasonable way offending the constitutional guarantee provided in article 21. It was observed that ensuring “Just, fair and reasonable procedure” only till the process of pronouncement of judgement is not sufficient and that it should be extended till the execution of the same. The court differentiated between mere execution of a death penalty and its execution after an “inordinate delay”, thereby stating that the suffering and pain from the former is legal but the mental anguish and horror from the latter which reduces a person’s existence to a “lifeless mummy” is not. It was further held, without giving convincing reasons, that irrespective of the cause of the delay, a delay “exceeding two years in the execution of the sentence of death is sufficient to quash the sentence of death and to substitute it by imprisonment for life.”

Subsequent to Vatheeswaran, the Supreme Court constituted a three-judge bench (Y.V.Chandrachud C.J., V.D.Tulzapurkar and A.Varadrajan JJ.) in Sher Singh v. State of Punjab (1983) which refused to accept the decision of Vatheeswaran as a “binding rule”. Chandrachud CJ., speaking for the bench, held that the court does not subscribe to the “absolute and unqualified” rule of delay of 2 years and that the court must, in all cases, inquire into the cause of the delay. Two years post Sher Singh Judgment, the matter again came to Justice Chinnappa Reddy (along with E.S. Venkataramiah J.) in Javed Ahmed v. State of Maharashtra (1985) and Justice Reddy disagreed with Chandrachud CJ and stuck to the ratio of his previous decision in Vatheeswaran.

Owing to such incongruous opinions of previous benches, a Constitutional Bench (G.L. Oza, M.M. Dutt, K.N. Singh, K. Jagannatha Shetty and L.M. Sharma, JJ.) was formed in Triveniben v. State of Gujarat (1989) to decide, inter alia, when does delay in execution of a sentence of death furnishes a ground for commutation of that sentence to life imprisonment and is it advisable to substitute death sentence by imprisonment for life on account of time factor alone? In answering this question, the court aligned with Vatheeswaran only to the extent that it acknowledged that undue delay in execution of sentence of death not only leads to inhuman suffering and dehumanizing treatment but is also unjust, unfair and unreasonable deprivation of life and liberty of a condemned prisoner and therefore infringes the mandate of article 21 of the Constitution. Subsequently, the bench took a different route from Vatheeswaran and held that, where on one hand, such delay does constitute “a valid ground for its commutation to life imprisonment”, a decision, on the other hand, must come after careful analysis of the inordinate delay in light of “other relevant factors”. The bench further disapproved of the idea of “fixing of the period of delay” given in Vatheeswaran.

This position became the settled one for the time being and the Supreme Court relied on Triveniben decision in the subsequent cases of Madhu Mehta v. Union of India (1989) and Jumman Khan v. State of U.P (1991) and took into consideration all the other relevant circumstances to decide the impact of inordinate delay in commutation.

Part II: Bhullar to Shatrughan Chauhan

In 2013, this death penalty debate was reinvigorated in India owing to two Division Bench Supreme Court decisions viz.  Devender Pal Singh Bhullar vs. State of N.C.T. of Delhi (2013) and Mahendra Nath Das vs. Union of India(2013). These two decisions were delivered within a period of twenty days of each other and harmony between the two decisions is obvious as both of them were delivered by Justice G.S. Singhvi.

In Devender Pal Singh Bhullar vs. State of N.C.T. of Delhi, the petitioner was accused of being involved in terrorist activities in Punjab and Chandigarh and was charged under various section of IPC, Passports Act and Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).

The petitioner in this case argued that such inordinate delay of 8 years in executive’s action in handling of the clemency petition does not pass the tripartite “golden triangle” test and is not “just, fair and reasonable” thereby offending the standards of “liberty, dignity and freedom” guaranteed under the constitution. Such delay, it was argued, “was arbitrary and led to inhumane and degrading treatment of the petitioner”, along with violation of the petitioner’s right to speedy trial.

The first issue decided by the court was regarding the nature of power vested by Article 72 and 161. It held that such power is a manifestation of the prerogative of the state and it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility to be discharged by the highest executive keeping in view the considerations of larger public interest and welfare of the people. Secondly, the court felt that the Triveniben rule was still the correct position of law and the courts must inquire into the “nature of offence” and the “cause of delay”. However, the court held that such a rule of commutation of punishment “cannot be invoked in cases where a person is convicted for offences under TADA or similar statutes” because of the “seriousness” of such offences and the “perverted political goals” of the criminals along with their “lack of respect for human lives”. Explaining the rationale of its decision, the court went on to say that “It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death”. Lastly, the court opined on the issue of the extent of judicial review over such executive actions and held that the court’s powers in this regard is “limited”. It held that “the court can neither sit in appeal nor exercise the power of review, but can interfere if it is found that the decision has been taken without application if mind to the relevant factors or the same is founded on the extraneous or irrelevant considerations or is vitiated due to mala fides or patent arbitrariness”

The second judgement given by Justice Singhvi was the Mahendra Nath Das vs. Union of India. In this case, the petitioner was convicted for murder by the trial court which was subsequently confirmed by the Supreme Court. Following this, a mercy petition was filed by the petitioner and the government took 12 years to reject it. The Supreme Court observed that in this delay time of 12 years, 8 years’ time is completely unexplained. The court said that “we are convinced that 12 years’ delay in the disposal of the appellant’s mercy petition was sufficient for the commutation of the sentence of death.” Secondly it was held that the president was not properly advised and assisted in the disposal of the petition filed by the appellant and consequently the rejection of the mercy petition is declared illegal and quashed.

By the force of M.N. Das judgement, the execution of many death row convicts who had their mercy petitions rejected by the executive, was stayed. Henceforth, the Chief Justice ordered the constitution of a larger bench to scrutinize the “post-mercy rejection” jurisprudence. The bench gave this landmark judgement on January 21,2014 in the case of Shatrughan Chauhan vs. Union of India(2014) wherein it held that “Undue, inordinate, unreasonable and unexplained” delay in execution per se could be a ground for commutation of death sentence. Chief Justice P. Sathasivam, speaking for the court, held that “Articles 14, 19 and 21 supplement each other and the right to commutation of death penalty due to undue and inordinate delay in execution of mercy petition is a substantive right of the convict and not merely a procedural right. Therefore, undue delay would entitle the death convict to seek relief under Art. 32 r/w Art.21 and get his death sentence commuted.” The court held that if the above ground is made i.e. there is “inordinate delay caused due to circumstances beyond the control of the death convict and which is caused by the authorities for no reasonable ground”, the court should itself commute the sentence rather than “remanding matter for reconsideration of mercy petition”.

The Supreme Court accepted the contention of the petitioners that the “impugned executive orders of the rejection of mercy petition against the 15 death convicts represented herein were passed without considering the supervening events which are crucial for deciding the same.” It further held that “the legal basis for taking supervening circumstances into account is that Article 21 of the constitution inheres a right in every prisoner till his last breath and the Supreme court will protect the right even if noose is being tied on the condemned prisoner’s neck.” However, not tilting on either side, the court ordered that a “balance should be stuck between the rights of the accused/convict and the rights of the victim”.  The argument of the government that “even if the delay seems to be undue, the matter must be referred back to the executive and a decision must not be taken on the judicial side” was rejected by the court. The court held that “under the ground of supervening events, when art. 21 of the constitution is held to be violated, it is not a question of judicial review but of protection of fundamental rights and the courts give substantial reliefs and not merely procedural protection”.

The Supreme Court in this case overruled Devender Pal Singh Bhullar vs. State of N.C.T. of Delhi on the issue of the exception that it had created in cases of offences under TADA act and other related statutes. The court said that “the supervening circumstances is applicable to all types of cases including offences under TADA. The argument that a distinction can be drawn between IPC and non-IPC offences since the nature of the offence is a relevant factor is liable to be rejected at the outset.”

In the context of judicial review, the court held that the powers under Articles 72 and 161 are subject to “limited judicial review”. The court placed reliance on its rulings of 2011 and 2006 in matters of Narayana Dutt vs. State of Punjab and Epuru Sudhakar vs. State of Andhra Pradesh respectively, and laid down grounds on which such executive powers should be challenged.

It was further held that it had the power of review over the executive action in question because of the fact that the executive in coming to its decision had “overlooked the supervening circumstances” which comes under the category of “order passed without application of mind” as laid down in Narayana Dutt, because if it had applied its mind properly, it would surely have taken such relevant considerations and circumstances into contemplation. The court also held that “though no time limit can be fixed for the exercise of power under art. 72 and 161, it is the duty of the executive to expedite the matters at each and every stage of the process”.

In the concluding remarks, the court acknowledged the “disparities” in the implementation of the established law with respect to death row convicts and henceforth framed certain guidelines for safeguarding the interests of the convicts.

Part III: Post Shatrughan Chauhan Case

The Supreme Court of India in V. Sriharan vs. Union of India(2015) clarified and applied the ratio of Shatrughan Chauhan case. The court commuted the death sentence of three convicts who were charged with conspiracy to kill the former Prime Minister of India, Late Rajiv Gandhi. It held that evidence of suffering of death convict during incarceration is not a prerequisite for the relief of commutation of death sentence on ground of undue delay in disposal of mercy petition. Regardless and independent of the suffering it causes, such delay makes the procedure of execution of death sentence unfair, unreasonable, arbitrary and capricious and thereby violates due procedure guarantee under art. 21 of the constitution and the dehumanizing effect is presumed in such cases.

On the next day of this judgement, the State government of Tamil Nadu decided to release the convicts in connection with the assassination along with those who had their death sentence commuted to life imprisonment, because they had already served the statutory minimum period of imprisonment. The Union of India moved the Supreme Court against this decision of the State Government.

In the meantime, the Supreme court kept applying the decision in Shatrughan Chauhan to cases like Ajay Kumar Pal vs. Union of India(2015) and Navneet Kaur vs. State of N.C.T. of Delhi(2014) and continued deciding in favour of the commutation of death sentences into life imprisonment.

Ultimately, the Supreme Court called upon a constitution bench to decide the matter between the government of Tamil Nadu and the Union of India. A lot of issues were discussed by the court in this case but we are restricting ourselves to the specific issue in question, wherein the court affirmed the decision of Shatrughan Chauhan and further held that the option of exercising the power of commutation/remission under section 432 and 433 of CrPC is available to the appropriate government even after the exercise of constitutional provisions by the executive.

Lastly, on 9th February 2017, the Supreme Court in a four judge bench (J.S. Khehar CJ and  justices Dipak Misra, J.Chelameswar, and Ranjan Gogoi ) dismissed the curative petition that was filed by the Union of India for the reversal of the decision in Shatrughan Chauhan vs Union of India and thereby settled the entire debate on this issue.

Concluding Remarks

The entire debate vis-a-vis the issue that whether inordinate delay in disposal of the clemency petition by the executive, in itself, can constitute a ground for the commutation of the death sentence has been settled by the court in Shatrughan Chauhan case, wherein it answered the above question in the affirmative. The Supreme court has further clarified its position on the issue in V. Sriharan case and ultimately reaffirmed the same position when it dismissed the curative petition filed by the Union of India in Shatrughan case. However, upon juxtaposing the judicial developments with the actions of the executive, it is seen that in spite of abundant constitutional clarity on the issue, the executive’s process and approach still appear to be incongruous with the judicial pronouncements. Consequently, it would be interesting to see whether the Supreme Court acts on the PIL and goes on to frame guidelines and specific procedures to dispose the mercy petitions efficiently and in a time bound manner, or would it refrain to interrupt in the domain of the executive and trust it with honouring their judicial acumen.


The author is an alumnus of the NALSAR University of Law, Hyderabad and is currently working as an Advocate at the Hon’ble High Court of Allahabad. He could be contacted at office.ayushmishra@gmail.com


Photo Credits: Bharat Bhushan/Hindustan Times

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