The courts of civilised states have recognised and acknowledged that a prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading.

Afzal Guru, convicted for his role in the 2001 terrorist attack on Parliament, has been on death row for nearly five years, after his appeal was dismissed by the Supreme Court on August 5, 2005. His execution, due on October 20, 2006, was stayed by the government because a clemency petition was filed by his family to the President. A decision on the clemency petition has not been taken till today. In the meantime, Afzal Guru suffers in solitary isolation, not knowing whether he will be executed or not. The agony of his family must not be any less.

On September 30, 2009 Home Minister P. Chidambaram said 28 mercy petitions, including that of Afzal Guru, were pending with the President and with the Government of India. He said he would have a fresh look at them and each case would, on average, take three to four weeks. The first case would be the one from Tamil Nadu, which has been pending with the President for 11 years — since April 1988. On this schedule, it was estimated that the government would take two years to decide on Afzal Guru's petition. But suddenly after Ajmal Kasab — the lone surviving terrorist in the Mumbai 26/11 attack — was sentenced to death in May this year, Afzal Guru's case has been taken up out of turn for immediate action. We are now informed that the Home Ministry has forwarded his petition to the President.

The courts of civilised states have recognised and acknowledged that a prolonged delay in executing a death sentence can make the punishment, when it comes, inhuman and degrading. The trauma and physical stress coupled with solitary confinement of a convict known as the “death-row phenomenon” is itself a cruel punishment. The prolonged anguish of alternating between hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of not only the convict but also his family should not be allowed in civilised societies.

It is a misnomer to describe the petitions made to the President and Governors under Articles 72 and 161 of the Constitution by convicted persons as mercy petitions. The Constitution confers a right on such convicts and a duty on the Presidents and Governors (in reality the respective government) to duly consider the petitions and take action on them expeditiously. Properly exercised, this power of clemency has in several cases in the U.K. set aside miscarriage of justice even by the highest court. But this power has never been exercised properly in a timely and humane manner in India.

Keeping such petitions pending for an inordinately long period, the government seems to be totally ignorant of its obligations in law and of the human aspect of the suffering of persons on death row. It treats them as if they are standing in a queue for rations.

Of all the cases awaiting execution, Afzal Guru's is the most poignant one as he has been made a political pawn, with the BJP unseemingly demanding his immediate execution and making it an issue in the last general election, while the government thinks it is equally expedient to delay it for political considerations but giving unconvincing grounds such as saying his file was not returned by the Delhi government for four years. It is now revealed by the Delhi Chief Minister that the previous Home Minister deliberately instructed the government not to act promptly on Afzal Guru's file.

Afzal's mental agony can be seen from his pathetic statement made in June last year. 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 UPA 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 does not deserve this predicament.

In 1993, in a case of delay in the execution of two convicts in Jamaica and Trinidad, the Privy Council 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 for so many years would be inhuman punishment.”

In 1983, the Supreme Court observed in the Sher Singh case: “We must take this opportunity to impress upon the Government of India and the State governments that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received.” The government has ignored this advice as is evident from the number of prisoners on death row.

In its latest pronouncement on September 18, 2009 in the case of Jagdish vs. State of Madhya Pradesh, the court in a strongly expressed judgment noted the cruelty and torture of a prisoner on death row caused by the inordinate delay in deciding his petition. The court cited a U.S. Supreme Court decision which observed “The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution. The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of the sentence and the actual infliction of death.”

The Supreme Court's observations require to be stated at length to remind the Government of India of its failure in clemency petitions.

The court stated:

“We, as Judges, remain largely unaware as to the reasons that ultimately bear with the Government in taking a decision either in favour of the prisoner or against him but whatever the decision, it should be on sound legal principles related to the facts of the case. We must, however, say with the greatest emphasis that human beings are not chattels and should not be used as pawns in furthering some larger political or government policy.”

It further observed: “Equally, consider the plight of the family of such a prisoner, his parents, wife and children, brothers and sisters, who too remain static and in a state of limbo and are unable to get on with life on account of the uncertain fate of a loved one. What may be asked is the fault of these hapless individuals and should they be treated in such a shabby manner.”

Continuing, the court stated: “The observations reproduced above become extremely relevant as of today on account of the pendency of twenty-six mercy petitions before the President of India, in some case, where the courts had awarded the death sentences more than a decade ago. We, too, take this opportunity to remind the Governments concerned of their obligations under the aforementioned statutory and constitutional provisions.”

After the powerful indictment by the Supreme Court of the inhumane practice of the Government of India in keeping mercy petitions pending for inordinate lengths of time, the President and the Government of India are obliged to commute the death sentences imposed on prisoners. This is particularly so in the case of Afzal Guru, who has been made a political pawn. To do this is not only to act legally but to act humanely which is surely expected of the President and the Government of India.

(The writer is a Senior Advocate of the Supreme Court and former Solicitor-General of India.)

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