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Death Penalty and Inordinate Delay

Death Penalty and Inordinate Delay - A discourse on rights and procedure

In recent times there have been a lot of cases where convicts in 'rarest of rare' cases have tried to avoid the death penalty, or their execution had been grossly delayed. Over decades these people have misused the technicalities of the law to their end and have tried to, if not completely, absolve their sentences. But how is that possible? How is it that these people are getting away with their crimes? The answer lies simply in the functioning of Articles 72 and 161 of the Indian Constitution, 1950.

Before we apply our judicial minds to the reality and the aberration of the death sentence itself, we must solidify our understanding concerning the existing judicial pronouncements and the division in law which they seem to misuse. And to begin we must start at the purpose and principles that were adopted by the constitution itself.

For the sake of extreme brevity, let us first discuss the Doctrine of Separation of Powers, without the support of any legislation on that behalf, so that we can concentrate on its conceptual aspect.

The doctrine of Separation of Powers

The framers of the Constitution clearly saw the need for a distinct judiciary, executive and legislature in the Union and State Machinery. However, it posed another major problem. If this independence would be allowed to subsist, then a situation may arise wherein either one or all of the state machinery may start acting with extreme self-interest and thus mete out severe injustice to the people.

Considering this system, it was realised that although these functions will be separate and distinct. A system of checks and balances was allowed to exist, to keep these factions accountable to each other and the Union. A beautiful example is the Powers of President and Governor as enshrined under article 72 and 161 of the Indian Constitution which provides them with the right to grant pardons against judicial mandates if such a need arises.

It should be pertinent to note, that if this system of checks and balances were to over-exceed their bounds, it could misconstrue the basic moral fabric which our constitution is based upon and the separation of these powers will cease to exist. Instead, a new situation may arise, wherein one state functionary shall start dispensing the functions of others. Which in itself may not only be patently ill-legal but unconstitutional.

Regarding articles 72 and 161, and the case of mercy petitions a similar situation has been seen to arise. Wherein it seems the check and balance system has been misinterpreted for more than a few decades. Before we go into the nitty-gritty of the situation therein. Let us just Gloss over what Article 72 states.

Article 72

The article reads:

72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases:

  1. The President shall 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
    1. In all cases where the punishment or sentence is by a Court Martial;
    2. In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    3. In all cases where the sentence is a sentence of death
  2. Noting in sub-clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force
Article 161 has not been repeated for the sake of brevity as it is a mirror reflection of this article in terms of meaning. So from a reading of Article 72, we can understand that there has been made a juncture between the executive and the judiciary, which seems to be purporting the idea of checks and balances. Now comes a pertinent question. 'Is the use of the word Shall therein imposing a mandate or is merely obligatory and/or discretionary?'

If the word shall therein is understood to be that of a mandatory nature, then in that manner Article 72 would be misinterpreted and the constitutional heads therein would be acting as a court of appeal. Which clearly is not the objective sought here. But how can we know for sure that this was not the intention of the framers of the constitution?

A thumb of rule under Interpretation of Statutes states that to understand the meaning of an enactment, we must first look at the enactment itself and its language, for this purpose, tools of literal construction are utilised. When these tools fail us, and there is still a lack of transparency we look at the adjacent sections, or the act (in this case the constitution) itself. The division of chapters and schedules come of great avail to interpret sections/articles.

Thus considering this Golden Rule, if we look at the placement of articles 72 and 161, we find that they have been placed under Part V, Chapter 1 and Part VI, Chapter 2 respectively. These headers, which are also used as tools of interpretation, herein are Union Executive and State Executive. Whereas the Union Judiciary and State Judiciary has been enumerated under Part V, Chapter 4 and Part VI, chapter 5 respectively.

So how is this distinction important? We see that under the header of Judiciary of both union and states, we see the procedure for Appeal. For example, in the case of the Union Judiciary, we see articles 132 to 137 dealing with appeals. The presidential power of pardon has not been mentioned here. Thus if the word shall therein was of a mandatory nature it would make the president an appellate body and thus his/her power would have been discussed therein, and not under other chapters.

The distinction of these chapters is abundantly clear to show that:
  1. It is an executory function and not a judicial function.
  2. The power therein is discretionary and on the pleasure of the president and not as a matter of right to the accused availing benefit therein.
If such a situation is allowed to subsist as a right, then it not only goes on to violate the separation of powers doctrine but ropes in the executive as a mandatory judicial functionary, which clearly is not the intention of the framers of the constitution and thus proceeding to do so is not only based on erroneous interpretations but is patently unconstitutional.

We will further solidify this argument, in the later section with the help of other judicial pronouncements. Let us now deal with the Legality of the death sentence, in itself.

Death Sentence under International Law

In regards to our international obligations that we have ratified, we are bound by Article 7 ICCPR (signed on 23rd December 1976) and Article 5 UDHR (signed on 12th December 1948). But we clearly know that International Law holds no enforceable mandate and to understand the Judicial Trend, we need to look at a few post-ratification judgements and their reasoning as it helps us understand the Indian Standing on Death Sentences.

Indian Standing
In Bachan Singh v State of Punjab[1], whilst relying on the 35th report of Law Commission of India, it was held that Death Penalty neither violates the Basic Structure nor offends the Golden Triangle of Fundamental Rights as enshrined and brought about by Maneka Gandhi v. Union Of India[2] and Kesvanada Bharti v. Union Of India[3]

In Jagmohan Singh v. State of Uttar Pradesh[4], the court emphasized the need for & intention of framers to allow for death sentences. Court emphasized the need and sought its validity under articles 21, 72, 134, 161, & entries I and II of list III of VIIth schedule.

Paras Ram v. State of Punjab[5] relied further on Jagmohan Singh Judgement, it has been remarked that in the interests of social justice, an important function is discharged by judges in suppressing grievous injustice to humanist values by inflicting deterrent punishment on dangerous deviants by imposing the death penalty.

Thus considering these circumstances it can be understood that the Indian Jurisprudence is in favour of the Death Sentence if an opposing view has been adopted by courts and they try to head away from the death sentence, then there is not much reason as to why such an idea is adopted.

And if not overreaching, In the case of Nirbhaya death penalty was again upheld. Thus we have established that the grant of death sentence is not patently ill-legal rather necessary in certain circumstances. However, it is still appalling to see that these criminals get away with their crime. To understand why such a situation exists we just need to understand the protection sought by the convicts in these cases.

The spectre of the Accused

The accused seeks to avail protection under article 21 on the grounds of inordinate delay caused in the deliberation of their mercy petitions. In furtherance of this issue, they approach the Supreme Court under article 32 and sentences have been commuted on this ground alone.

The accused pleads on the grounds of inordinate delay by stating that since they have been subjected solitary confinement & such a punishment provides a degrading and inhuman treatment, them being made to undergo such a punishment for long periods of time violates Article 21. Now we need to understand what the courts have stated in this regard and whether a violation truly exists.

In Sunil Batra v. Delhi Administration[6], Section 30(2) of The Prisons Act was discussed in great detail. Justice Krishan Iyer observed that the aforesaid section postulates segregation on the ground of the death sentence. But also a remarkable observation has been provided along with. He has observed that segregation should not come into place until a finally executable death sentence has been delivered. A finally executable death sentence would be said to prevail when all judicial remedies have been exhausted, and the only thing left to do is the execution itself.

It was then understood and adopted that such death row convicts must not be kept separate, and this thus killed one of their defences. However, the delay still went on to persist.

In Shatrughan Chauhan v. Union of India[7], it has been held that The delay so caused, must not be at the instance of the accused himself. But we see clearly here that when the convict requests for a pardon, he himself is causing the delay. However, this position has not been realised due to a lot of oversights in law, as discussed further because we see how various judgements have shaped this view totally out of character.

The issue at hand
After considering these points, we feel the urge to go to the centre of the problem, i.e. Inordinate Delay as a ground for commutation of the death sentence. This delay stems from the running of the accused from pillar to post, invoking The Supreme Court's Jurisdiction under article 32, and that of the president and the governors under articles 161 and 72. So the fundamental problem brings us back to the issue, why is there existence of inordinate delay?

The accused is given a Right to Speedy Trial, under the expansive meaning of Article 21 as has been brought forward by the Maneka Gandhi[8] Judgement. But would it be right to deem the process of presidential pardon as a trial?

We know by common understanding and various lexicons, that trial is said to be held when an adjudicator adjudicates over a matter, parties are given a chance to present their case (Audi alteram partem), the evidence is adduced by both parties and the guilt of the accused is determined. However, it is not so in the case under the presidential/governor's pardon. Parties do not further their case, neither the president or governor has the obligation to apply judicial knowledge to the facts and circumstances when a mercy petition is brought before them.

The ground for relief sought herein is never based on law, but principles of morality and mercy, which as we know through various jurists are subjective hence there is no uniform application and this process is a consideration of moral and ethical factors.

In State of Haryana v. Jagdish[9] it was held:
This power under articles 72 & 161, was never intended to be an unbridled power of reprieve. It is a power that needs to be exercised cautiously. . It is a power of the sovereign that is exercised against its own Judicial Mandate

Thus from this observation, it can be understood, that this is a system of checks and balances in the Indian democratic system. And it is a power to be sparingly used, and when used it is only when the President/governor feels that there has been an overreach in meting out justice and therefore this power is free from Judicial Consideration but is benevolent of the ethical and moral fibre of society.

It can be argued that this procedure though not a trial in itself but can be considered a sentencing procedure. Concerning Criminal matters, the sentencing procedure has been outlined in Section 235 of the CrPC. But holding a view of the sort will be absolutely incorrect as the words of section 235 clearly illustrate the words After hearing arguments and points of law (if any), the judge shall give a judgement in the case. The definition of judgement needs no explanation here, as the order of pardon is not a judgement but an order at best or maybe an acceptance of a plea.

But for sake of argument, let us consider that the constitution did mandate the need for the President/Governor to preside over the judicial the mandate, then at least that power should remain supreme and unquestionable. But unfortunately, the case is not so, as a matter of fact rather than limiting the extent of these organs, the judicial interpretation of these articles have further gone on to dilute the Doctrine of Separation of Powers rather than maintaining the system of checks and balance, as rightly pointed out in State of Haryana v. Jagdish[10]

For a clearer illustration let us consider these judgements. In Devender Pal Singh Bhullar v. State of NCT. Of Delhi[11], the court set out three grounds for bringing under review a president's/governor's pardon. They are, namely:
  1. Decision Taken without application of mind.
  2. Founded on extraneous or irrelevant considerations.
  3. Malafide or patent arbitrariness.
Shatrughan Chauhan judgement[12] provided four other supervening circumstances:-
  1. Insanity
  2. Judgements relied upon declared per incuriam.
  3. Solitary Confinement
  4. Lapses in procedure

In Narayana Dutt v. State of Punjab[13], further grounds for judicial review have been brought forward for challenging exercise under articles 72 & 161:
  1. If president/governor exercised the power himself, without the advice of the government.
  2. If president/governor transgressed his jurisdiction.
  3. If president/ governor passed the order without application of mind.
  4. If president/governor passed the order on some extraneous considerations.
However in Epuru Sudhara v. State of Andhra Pradesh[14] it was held that:
  1. There must not be any political consideration in the exercise of such power.
  2. Moreover, if the executive does choose to exercise this power, it must do so after considering all relevant materials & circumstances before arriving at any conclusion.

In Epuru Sudhara it is abundantly clear that the judiciary intends to separate the legislature and the executive, but again in Narayana Dutt[15] and the judiciary has bridged the gap from executive to the legislature, and curtailed the exclusive power of the president/governor with that of a combined power of the legislature and executive by allowing such order of the president to be subject to judicial review if it is found that he did not consult the legislature (government).

Which is not only in contravention of the doctrine of separation of powers, but also an overreach. The doctrine of separation of powers if so violated, also goes against the arbitrary use of power which has been prevented by the constitution under article 14. Considering this standpoint, such a position is also against the basic structure of the constitution.

Another aberration is the extremely subjective condition of non-application of mind. These wordings are so vague and non-exhaustive that in any case or circumstances, this principle can be invoked and then the judiciary again has the power of review over a case it originally itself considered. And thus the entire provision of article 72 and 161, becomes redundant.

The same reasoning can be gained when the Apex Court reviewed the case of Shatrughan Chauhan[16], and on consideration of 'supervening circumstances' brought upon it the onus of review of the presidential mandate and to such justification sought approval from the Narayana Dutt[17] guidelines. Thus a question arises in these circumstances, what is the use of such a power when it can be termed redundant by the same organisation, against which such power was granted?

Thus the interpretation by the law over the years of these articles has seen to only create problems, and make delay inevitable. Thus if the delay can be claimed as a ground of relief, there is no procedure to stop delay. It is pertinent to note that once, the judiciary reviews the presidential/governor's mandate, there is no bar against moving the president/governor again on a mercy plea. Thus this creates absolute arbitrariness and this endless process, will inevitably cause the delay.

Again for arguments sake, let us consider that this power granted, is not a discretionary power but mandatory, then in all likelihood, it is part of the judicial process. And if such an interpretation is believed to be true, another judgement entirely metes out the problem of delay.

In Triveniben v. State of Gujrat[18], it was held Under Article 32, the court will only examine the nature of the delay caused and circumstances that ensued after the sentence was finally confirmed by the judicial process.

Thus if it is an accepted position of law, that the powers of the president and governors are a part of the judicial process, then no question arises to commute sentence on delay, because the judicial process is still underway and to commute the sentence, is an act that is not only ill-legal but limitless. Because if an exception is drawn to the judicial process herein, then who decides where the embargo will stand? Can a person even before reaching and settling the issue before High Court, claim inordinate delay?

Because death sentence as understood by Sunil Batra v. Delhi Administration[19], is not a death sentence until it is a finally executable death sentence. Thus the question of delay is unnecessary and defeats the end of justice.

An interesting opinion here is that of Justice Y.V. Chandrachud in the case of Sher Singh v. State of Punjab[20] wherein it was held by him that post mercy jurisdiction exists with courts, but they must be cautious in exercising a free hand over such cases. He warned that all prisoners on death row belong to the same breed of 'rarest of rare' criminals & to allow some of them to take the benefit of the delay would be unfair to others. The same opinion was upheld in the Triveniben[21] judgement.

The amazing feature of the Triveniben judgement, which gives us the closest link to a correct interpretation has never in itself been over-ruled. It was brought up during argument in The Bhullar case as Triveniben judgement had overturned the judgement T.V. Vatheeswaran v. State of Tamil Nadu[22]. But the Triveniben judgement was not touched by the justices then, and the argument was merely termed attractive. The importance to bring up the fact that Vatheeswaran judgement was overturned is because it is this judgement that states that 'Long Delay makes sentence degrading and inhuman'.

Thus the enforcement of this provision is a two-edged sword. If you address the powers of the president/governor as a duty to sit in appeal, then you bring them under judicial process and then the relief of delay cannot be claimed.

And if it is not a duty but a power as understood etymologically, then it is a benefit enjoyed at the pleasure of the president/governor. Therefore any such delay that is caused is due to the instance of the accused themselves and thus cannot claim relief against the same and the same point has been upheld in Shatrughan Chauhan.

The other problems with the structure and further dilution of the separation

What is the most fascinating aspect of this entire comedy of errors is the factor that in order to send your mercy plea to the president, it goes through the Ministry of Home Affairs, which each bureaucrat starting at the lowest to the top passes on their comments insertions, additions, subtractions to these petitions, so in the end when and if they do reach the president, it is a rendering of the opinion of the bureaucrats and not the president.

The Constitution did not provide for the legislature to delve into the president's/governor's exclusive power. Thus this is patently ill-legal and breaches the doctrine of separation of powers and makes an absolute mockery of the system of checks and balances and creates imminent delay. And if the process cannot be changed, and delay is imminent, then such protection should not be extended to these hard-core criminals, so that they make out on bail after already undergoing a life sentence and behead another man. (Sher Singh judgement).

The additional question arises in this circumstance is the question of the victim's rights. The law is dead silent in this regard. We have put immense consideration into the accused's rights here, and maybe such protection may be needed in the law. But to what extent?

We know the criminal case is fought against the state, as a crime is against society and the public at large? What happens to the justice much deserved by state and public, just because a hardcore criminal is caused inconvenience doesn't mean the society should be put at risk again. Because once granted life imprisonment, they will be liable to be granted bail. And what then? Status Quo? And society being affected at large? What happens to the jurisprudence deriving a strict need for the death penalty?

Another issue here is that, this delay that is dearly claimed by these accused are generally those accuse din high profile cases, who get expensive lawyers who fight for them and thus commute their sentence to life by running an absolutely continuous cycle of litigation one after the other. This makes justice for the poor man much harder to achieve, and if I may be curt impossible. Thus if the delay is a ground that only the rich and litigious can avail, then there is an inherent bias involved and hence antithetical to Article 14.

And where goes reform? No single judgement has considered whether the accused had actually reformed, and sentences are commuted merely on the basis of delay. Isn't reform an essential part of the prison system, and if it is felt there is no reform, then why commute such a sentence? But the Indian judiciary prefers to keep mum over the same.

Lastly, as a closing statement, I would like to quote the great words of an American Founding Father, A distinguished attorney, constitutional interpreter, founder of the famed 'New York Post' and first treasurer of United States, Alexander Hamilton. His words in the Federalist no. 78 and the Anti-Federalist no. 78 are of great importance over here, he said The complete independence of the courts of justice is peculiarly essential in a limited Constitution. These words hold grave importance today and are a point of introspection for all of us to re-interpret and re-understand the constitution and enforce its spirit in the manner it was intended.

Because if such a wrongful interpretation is allowed to persist, it would not only defeat the ends of justice and cause extreme injustice to our constitution itself, but will go on to absolutely dissolve rights of both the accused and the victim in the very same instance.

  1. (1980) 2 SCC 684
  2. (1978) 1 SCC 248
  3. (1973) 4 SCC 225
  4. (1973) 1 SCC 20
  5. (1981) 2 SCC 508
  6. (1978) 4 SCC 409
  7. (2014) 3 SCC 1
  8. ibid
  9. AIR (2010) SC 1690
  10. AIR 2010 SC 1690
  11. AIR 2013 SC 1975
  12. ibid
  13. (2011) 4 SCC 353
  14. (2006) 8 SCC 161
  15. ibid
  16. ibid
  17. ibid
  18. (1989) 1 SCC 678
  19. (1978) 4 SCC 409
  20. (1983) 2 SCC 244
  21. ibid
  22. (1983) 2 SCC 68

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