On Tuesday, January 21, 2014, a three-judge bench of India’s Supreme Court reaffirmed the value in due process of law, even in its application to those whom we as a society have shunned, by >commuting to life imprisonment the sentences of 15 convicts on the death row . The commutations, in Shatrughan Chauhan v. Union of India , were primarily ordered on grounds of delays by the President in disposing of petitions filed by felons praying for mercy. The Court held that to execute a person who has been kept on death row for years on end with no answer to his or her plea for clemency, is an act of torture that violates the prisoner’s fundamental right to life. Such acts of clemency would have hardly occasioned in most other civilised societies where the death penalty has been abolished. However, given that the cry for capital punishment keeps cropping up in India like “some unkillable movie gorgon,” to borrow a phrase once used by Nicholas Jenkins in The New Yorker , the decision is a welcome reminder of the constitutional values that we most cherish.
Assimilation of settled law The legal issue at stake in Chauhan was simple: are the powers of pardon vested in the President and the Governors under Articles 72 and 161 of the Constitution amenable to judicial review? The Court held that these powers carried with them a concomitant constitutional duty for the authorities exercising the powers to conform to due process. Therefore, in exceptional cases, where the authority concerned may have abdicated its responsibility in acting contrary to requirements of due process, its decisions would be amenable to judicial scrutiny.
In
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In many ways, this conclusion in
At the core of the Court’s finding is the now well-established notion that to keep a death row convict inordinately waiting for his or her turn to enter the gallows is an act of torture — in this case, an act, virtually, of state-sanctioned torture. Take, for example, Praveen Kumar, 55, one of the writ petitioners before the Supreme Court. He had been convicted of a quadruple murder and had been sentenced to death in February 2002. In October the following year, the Supreme Court confirmed his sentence. Soon after the sentence had reached finality, Kumar petitioned the President seeking mercy on the grounds that he had been subjected to solitary confinement ever since the trial court had found him guilty. In December 2003, the President’s office forwarded Kumar’s request to the State Governor concerned for consideration under Article 161. The Governor, having reviewed the various judgments of the courts, declined to exercise his power by a decision dated September 30, 2004, following which the President was once again seized of the petition. It ultimately took the President until March 26, 2013 to decide — and dismiss — the plea for mercy. As a result, Kumar, who had been sentenced to death in February 2002, had spent 11 years and 10 months in custody at the time of filing his writ petition. Capital punishment, in most civilized societies is regarded — rightly — as an abomination; but to keep a prisoner sentenced to death for an additional period of punishment is neither envisaged by law nor is it protected by the Constitution. As the Court rightly held in Chauhan , the right to life and personal liberty guaranteed by Article 21 includes within it a right to be treated with a certain dignity, even if you are a convict on the death row. Article 21 — which now by interpretive design recognises a right to due process — is applicable not merely to you, me and every other average citizen, but also to those condemned to the gallows. Any inordinate, unexplained delay in determining the merits of a mercy petition filed by a convict on the death row would be an infraction of that right. It is easy to wonder why the most brutal of men and women deserve the protection of the law; but when due process is disregarded for monstrous criminals, it also becomes simpler to disregard it for the rest of us.
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This fractured and vacillating approach of the Supreme Court is of grave concern, especially given that it affects the most crucial aspect of its judicial function: the protection of our fundamental rights. As the highest constitutional court of the country, it is imperative that the Court adopts consistent practice in its adjudicating; one way to achieve this is to ensure that important constitutional questions are settled by a bench of no less than five judges of the Supreme Court. For now, however, it appears that we must make the best of what appears to be a one step forward, two steps back approach of the Supreme Court.
(Suhrith Parthasarathy and Goutham Shivshankar are advocates in the Madras High Court.)