Procrastination on mercy petitions is inhumane to death-convicts.
An inordinate delay of 11 years occurred in considering the mercy pleas of the three death-convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, with their pleas being ultimately rejected on August 11, 2011 by the President of India. This is only one instance of the inhuman, unconscionable and arbitrary manner in which mercy pleas of convicts condemned to death are kept pending by the government for years on end.
Simultaneous with the rejection of the pleas of these three convicts, the Home Ministry has recommended to the President to reject the mercy plea of Afzal Guru. He was sentenced to death by the Supreme Court on August 5, 2005 and the government has not taken a decision on his clemency petition for six years now.
These are some of the prominent cases among pending mercy petitions, but not the only ones. Eighteen mercy pleas are pending with the President as on August 16, 2011, the earliest among them dating back to 2005. The government seems to be totally indifferent to the pathetic plight of such convicts who are kept in suspense for many years. Courts in all civilised states, including India's Supreme Court, have recognised that any prolonged delay in executing a death sentence can make the punishment, when it comes, inhuman and degrading. The trauma and psychological stress, coupled with solitary confinement, creating a conflict known as the “death row phenomenon,” in themselves amount to a cruel punishment. The prolonged anguish of alternating between hope and despair, the agony of uncertainty and the consequence of such suffering on the mental, emotional and physical integrity and health of not only the convict but also his family members should never be allowed in a civilised society.
In a leading case from Jamaica decided by the Privy Council in 1993, the court said: “There is an instinctive revulsion against the prospect of hanging a man after he had been under sentence of death for many years. What gives rise to this revulsion? The answer can only be our humanity. We regard it as inhuman to keep a man facing the agony of execution for a long extended period of time. To execute these men now after holding them in custody in agony of suspense of so many years would be inhuman punishment.”
In 1983, the Supreme Court of India observed that a self-imposed rule should be followed by the executive authorities that every such petition should be disposed of within a period of three months from the date it is received. In other cases, the Supreme Court has commuted the death sentence to life imprisonment because of the unconscionable delay and suspense involved for the convict. As recently as on September 18, 2009, the Supreme Court specifically reminded the government of its obligations with regard to the 26 mercy petitions that were then pending with the President. The Government of India has been not only oblivious of the inhuman aspect of the procrastination but has disregarded the repeated directions of the Supreme Court.
The case of Afzal Guru has been a gross instance of political considerations coming in the way of deciding a mercy plea. Afzal Guru has been a political pawn, with the Bharatiya Janata Party in an unseemly manner demanding his immediate execution and making it an election issue. Meanwhile, for political considerations the government has delayed taking a decision, giving flimsy grounds such as that the file was not returned by the Delhi Government for four years.
As a matter of fact, it was revealed by the Delhi Chief Minister that the previous Home Minister had deliberately instructed the Delhi Government not to take action promptly on Afzal Guru's file. Afzal Guru's mental agony can be seen from a pathetic statement he made in June 2010. He said: “I really wish L.K. Advani becomes the next Prime Minister as he is the only one who can take a decision and hang me. At least my pain and daily suffering will ease then.” On the United Progressive Alliance government's ambivalent attitude, he said: “I don't think the UPA government can reach a decision. The Congress party has two mouths and is playing a double game.” Whatever his crime, surely Afzal Guru does not deserve this agony.
On September 30, 2009, Home Minister P. Chidambaram said he would consider afresh the cases of the 26 convicts awaiting the death sentence whose mercy petitions had been lying with the President for several years. He said the Home Ministry would examine each case turn by turn — as if deciding petitions submitted to the President was an act of grace or mercy.
It is a fallacy to believe that the power of granting pardon given to the President and the Governor under the Constitution is an act of grace or mercy. The power conferred on the President and the Governor is a part of India's constitutional scheme and is an integral part of the criminal justice system in the public interest. The convict has a constitutional right to have his or her petition considered by the President or the Governor on relevant grounds, including miscarriage of justice. And it should be decided expeditiously. To use the felicitous words of a U.S. Supreme Court judge: “When granted the pardoning power is the determination of the ultimate authority that public welfare would be better served by inflicting less punishment than what the judgment has fixed.”
It appears that the Home Ministry has now fast-tracked death penalty cases because of petitions filed in courts. On June 12, 2011, the Gauhati High Court issued notice for the delay of 12 years in the case of Mahendra Nath Das. In July this year, the Supreme Court issued notice to the government in the case of Devender Singh Bhullar, forcing it to speed up the rejection of his mercy petition. On July 8, 2011, in a Public Interest Litigation petition moved by a non-governmental organisation against the government's inhuman and arbitrary practice of keeping such petitions pending, the Supreme Court issued notice to the government.
It is time the entire system of disposal of the so-called mercy petitions was set right once and for all by an authoritative pronouncement and correction by the Supreme Court. Individual cases such as those of the convicts in the Rajiv Gandhi assassination case that are now in court would raise the larger question of the working of the pardoning system by the government, and why cases of the other convicts on death row who are kept in similar suspense should not be simultaneously considered. This can only be done if the present system is examined and corrected by the Supreme Court for the benefit of all mercy plea petitioners.
(The writer is a senior advocate of the Supreme Court, and former Solicitor General of India and Advocate-General of Maharashtra.)