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Opinion » Comment

Updated: April 16, 2013 01:11 IST

At the mercy of the Executive

K. Venkataramanan
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Devinder Pal Singh Bhullar. Photo: PTI
Devinder Pal Singh Bhullar. Photo: PTI

By upholding the rejection of clemency to Bhullar because it was a terrorist case, the court seems to have created a category of the rarest of rarest of rare cases

The Supreme Court’s reasoning in the Devinder Pal Singh Bhullar case reveals an unfortunate determination to sanction judicial execution because it involved a terrorist offence. If there is one principle that emerges from the judgment of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya, it is that prolonged delay in disposal of a mercy petition, until now considered a possible constitutional limitation on carrying out an execution, will not be a factor at all in offences under anti-terrorism laws. It is clear that the Court worked its way out of a situation in which it may have had to commute the death sentence imposed on one convicted for terrorism. It achieved this by removing his case from the normative domain and relocating it in a descriptive framework that appeals to the perceived larger political constituency of resentment towards terrorism.

Being just a two-judge bench, it could not have dislodged principles laid down by larger benches. Over the years, the Supreme Court has often considered the question whether prolonged delay in disposal of mercy petitions should result in the courts commuting a death sentence into one of life. The broad principles laid down are: (a) prolonged delay may be one of the grounds for commutation (b) only the delay caused by the executive after submission of the mercy petition will be taken into account and will not include delays caused by the prisoners themselves; and (c) there can be no fixed time frame for the President or Governor to decide on a mercy plea. In the Bhullar case, while reckoning the actual delay, the Court excluded the two years or so that the government took to render its advice, and limited the relevant period to 2005-2011, when the matter was before the President. The Court has taken judicial notice of the “unending spate of petitions” from individuals and organisations, some of them political, which could have slowed down the decision-making process. Perhaps, the Bench could have justified the delay on this sole ground and let the President’s rejection stand. Instead, the Court has gone an extra step to hold that any delay is irrelevant if the case involves terrorism or related offences. It has made a distinction between cases involving terrorism or political annihilation and those that merely involve personal animosity or property disputes.

The Court has listed some examples — bride burning out of greed, causing large-scale deaths among innocent civilians, offences involving cruelty, for instance — to argue that the enormity of the crime should also be borne in mind by the President or the Governor while disposing of mercy petitions. This is extraordinary because the set of circumstances appears to be those on which courts normally justify the awarding of the death penalty, that is, what the trial court or the appellate courts would use by way of reasoning to bring cases before them under the purview of “rarest of rare cases.” Surely, these cannot be the same norms for deciding whether or not someone deserves mercy. If the reasoning for awarding the death penalty and the arguments to decline clemency are one and the same, there is no reason for the clemency jurisdiction to exist in the Constitution at all. With this, the court appears to have devised a new category of rarest of rarest of rare cases in which the death penalty is inevitable and that there can be no mercy at all. Interestingly, the Supreme Court had in 2011 transferred to itself the petitions of the three death row convicts in the Rajiv Gandhi assassination case by citing the fact that the same question of law — whether prolonged delay in disposal of a mercy petition is sufficient to commute a death sentence — is involved. At first sight, it may appear that the Bhullar case verdict has sealed their fate as this question is no more relevant to cases involving terrorism. However, it should be recalled that in the final verdict in the Rajiv case, the Supreme Court, in an intriguing ruling, held that the killing of Rajiv Gandhi was not a “terrorist act,” that it was an act of vengeance by the Liberation Tigers of Tamil Eelam. The entire case was taken out of the purview of the infamous TADA Act, under which it was tried, and guilt or innocence determined under ordinary criminal law. The four associates of Veerappan also on the death row may have nothing to look forward to, as their conviction is under TADA.

The Court has also rejected documents that sought to show that Bhullar’s mental condition is deteriorating in prison. His wife says his mental condition is unstable as he has to be hand-fed and that he fails to bathe for days unless he is reminded to do so. However, the court says the documents cannot be relied upon to record a finding that his mental health has deteriorated to such an extent that his death sentence cannot be executed.

Retributive justice

The apex Court has in the past rendered verdicts that helped check the misuse of anti-terror laws aimed at giving teeth to the fight against terrorism. Similarly, in the absence of any credible attempt to abolish the death penalty, it should have attempted to reduce the space for carrying out death sentences by imposing stringent norms on disposal of mercy petitions. And perhaps it could have recognised that prolonged stay under the shadow of death could have serious mental consequences. Instead, the Bhullar case has given a free hand to the executive to decide the timing of executions. It has stuck to the theory that the death penalty alone will slake the public thirst for retributive justice in some cases. Ultimately, the executive will have its way, not only on whether it will be mortality or mercy for someone, but also when.

venkataramanan.k@thehindu.co.in

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WE have to distinguish clearly between a "terrorist attack" and the
"attack on a political leader".

People may have genuine grievance against the state and they resort to
violent attack against the politicians or the government machinery out
of anger. Not all such cases should be considered as a terrorist
attack. Only the cases where someone is trying to "wage a war against
the state of India" or "trying to create social disharmony" or
attacking "common man (such as the 2009 mumbai attack or the various
bomb blast cases, etc.)" should be considered as terrorist attack.

from:  ASHOK DAVE
Posted on: Apr 17, 2013 at 22:49 IST

to all those who say that the delay in mercy petitions is wrong -
please spare a thought for the victims and their families. while
the terrorist/murderer suffers during his life time - victims and
their families suffer for a lifetime and in most cases generations
beyond.

from:  srivatsan
Posted on: Apr 16, 2013 at 21:18 IST

The author recent times has been pleading legal sanity and rethinking on cases related to judicial murder. Mercy petitions are filed out of political interests of groups with proclaimed social interests but without universal truth in their actions. Although rejected a number of times, petitions are submitted and resubmitted under garbs and guile at a bewitching pace often clouding the origin of the issue at hand. To wit: Did or did not Devinder Singh Bhullar carry out the assassination out of political loyalty to an identified terrorist group? The answer is YES to the question for which evidence is often circumstantial -- as in the case of Osama bin Laden! Obviously Bhullar's movements prior to the act was examined (and he was not allegedly demented at that time), eye-witnesses examined (who may have turned hostile) and coercive methods were resorted to (and which terrorist group can say they are paragons of virtue on this count). So accept the situation!

from:  Azad Hindustani
Posted on: Apr 16, 2013 at 21:07 IST

Punishment is for rectifying the individual. If the individual cannot be rectified then death punishment is to be given. This was how the initial judicial system in USA. Punishment should not be seen as a means of revenge.

from:  raman
Posted on: Apr 16, 2013 at 20:03 IST

Personally am against death penalty and I want every convicted individual to repent for his wrong doing and compensate with good deeds instead of death. But there are 2 things to be considered. First, the victim should forgive the convict. Without which commuting the penalty will only grow the hatred of the victim and could lead to other consequences. Second, when SC gives death penalty, then the convicted is a hard core ciriminal and can only pleed for mercy and can no way demand it. There should be some indication that the convict is repentant of his actions. Big ciriminal activities are hatched in jail. By commuting death, we need to guard him in prison for life long. We know the result of keeping the ciriminal is jail for long realsing them during indian airlines hijack incident. So, death also becomes important to get rid of some ciriminal activities.

from:  Kumar
Posted on: Apr 16, 2013 at 19:45 IST

There must be a time frame in deciding upon mercy petitions. Sometimes, people languish in jails for close to 20 years and then their mercy petitions are rejected and they are hanged. Why did they spend 20 years in prison then? Double punishment?
I feel the entire provisions of hanging a person need to be revisited. After death sentence is awarded, victims can file mercy petitions which ought to be treated in a time bound manner. Once mercy petition is rejected, a deadline must be given as to the date of hanging. If the executive fails to maintain this deadline, then the death sentence will automatically be commuted to lifetime imprisonment. In this way, India will avoid facing charges of human rights abuse and also charges of opportunistic political executions like in the case of Afzal Guru.

from:  Mukut Ray
Posted on: Apr 16, 2013 at 13:44 IST

The author misses the point that what the SC says regarding considerations by the President for clemency should 'also' include the enormity of the crime. While the Courts would strictly go by legal provisions alone, the authorities vested with granting pardon can look at circumstances beyond that. The Apex Court is simply saying that while doing so, the enormity of the crime must not be forgotten. How does the author conclude that such a guideline would lead to the same result as that of the courts? It appears that under a misguided notion to abolish death sentences all sorts of arguments are being advanced by its protagonists. Death sentence is very much a required punishment in a country like India where terrorism, brutal killings, rape etc are increasing exponentially and there should not be an undue generosity of mercy.

from:  S.Sridharan
Posted on: Apr 16, 2013 at 06:54 IST
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