Our agenda begins with this opinion which appeared in The Indian Express recently, where T.R. Andhyarujina makes out a case for the abolition of death punishment due to the time gap between the verdict and the hanging. He says that the death row phenomenon is cruel and inhuman and even if capital punishment is retained, it is legally and morally indefensible to execute a person after keeping him (he uses the current example of Afzal Guru) on death row for that long. While Andhyarujina says that Afzal Guru’s is a special case because it has become a highly political issue, I think even otherwise it is unjust to hang a person months, or at times, years after he has languished in the jail waiting for a judicial verdict to be implemented. (Case in point: Dhananjoy Chatterjee’s execution in 2004 almost 14 years after the death sentence was passed).
The delay, usually caused due to mercy petitions pending before the President/Governor, can be avoided in a manner which is this.
- That the Supreme Court entertain a compulsory review of the confirmation of the death sentence by the High Court, and the entire confirmation process till the Supreme Court be completed within 3 months. This will ensure that without prejudicing the convict’s right to move the higher Court, chances of error are eliminated as far as possible. This must imply that there must be no further right to appeal/review available to the convict.
- Next, that the power to pardon a person who has been sentenced to death should be exclusively vested in the President. Currently, the President and Governor have coterminous pardoning power in death sentence cases (Art. 72/161 of the Constitution of India). And he must grant pardon or reject the petition within one month from when it is submitted. In case he does not dispose of the petition within that one month, the death sentence should automatically be commuted to one of life. This approach finds support in Supreme Court judgments like Madhu Mehta v. Union of India (reported in AIR 1989 SC 2299) and Daya Singh v. Union of India (reported in AIR 1991 SC 1548), where the Court has commuted death sentences to life terms because of unreasonable delay caused in disposal of the mercy petition by the President.
Thus, if India must retain death penalty in the “rarest of rare” cases, it must also immediately revamp the law relating to the same to prevent a convict from undergoing long prison sentences before he is finally executed.
