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.
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.