In declining to interfere with the President’s rejection of the clemency petition of Devinder Pal Singh Bhullar, the Supreme Court has lost an opportunity to invoke the sound legal principle that prolonged delay in disposal of mercy petitions could be a key ground for commuting the death penalty. Although a 1989 Constitution Bench in the Triveniben case had leaned towards the view that there could be no hard and fast rule on what constitutes a delay so unacceptable that a death sentence should be converted to one of life, it 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.” Since the President took over eight years to dispose of Bhullar’s mercy plea, this was surely a fit case for the Supreme Court to exercise judicial discretion in favour of commutation. Instead, the two-judge Bench chose to take the view that the rule that prolonged delay may be one of the grounds for commutation cannot be invoked in terrorism cases. The reasoning is curious since it is already settled law in India that the death penalty will apply only in the “rarest of rare” circumstances and only those cases reach the stage of clemency where the crime committed fits that description. It is surely tautological, then, to cite the enormity of the crime as the ground for denying mercy.

Though Bhullar evidently showed little mercy to the targets of his attack that left nine dead and 17 others injured in Delhi in 1993, the fact that the apex court confirmed his death sentence nine years later in a 2-1 verdict in which one judge actually voted to acquit him of the crime should make us all pause and think. In its order on Friday, the Supreme Court acknowledged “considerable delay” in disposal of Bhullar’s mercy petition, but also noted that a substantial part of the delay was due to the unending spate of petitions on Bhullar’s behalf. In the process, it has brushed aside an argument in the prisoner’s favour based on his present mental condition, saying the documents produced were not enough to conclude that his mental health has deteriorated to such an extent that the sentence could not be executed. The power of pardon resides in a higher constitutional domain in which the executive is free to come to its own conclusion based on an assessment of the totality of circumstances. If the exercise of such a higher power is marked by unexplained delay and leads to prolonged incarceration under the shadow of the noose, then that must be grounds for commutation regardless of the crime committed. The ultimate solution, of course, lies in abolishing the death penalty.

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