source:- tribuneindia.com<\/p>\n\n\n\n
Death penalty has been held to be a valid form of \npunishment in India by the Supreme Court. But can convicts inordinately \ndelay their execution by using procedural loopholes in the law?<\/p>\n\n\n\n
The question is being asked in view of delay in execution of the four\n convicts in the 2012 Nirbhaya gang rape and murder case. The issue \ninvolves significant questions of law regarding the rights of convicts, \nvictims and the larger society.<\/p>\n\n\n\n
So far as the delay on the part of the State is concerned, the \nSupreme Court has already ruled that a convict can\u2019t be kept waiting for\n the gallows and inordinate delay in his\/her execution is a ground for \ncommuting the death penalty to life sentence.<\/p>\n\n\n\n
In Jagdish versus State of Madhya Pradesh (2009), the Supreme Court \nruled that the government\u2019s failure to decide a mercy plea within a \nreasonable timeframe can be a ground for commuting the death penalty to \nlife imprisonment. \u201cWe must\u2026say with the greatest emphasis that human \nbeings are not chattels (slaves) and should not be used as pawns in \nfurthering some larger political (goal) or government policy\u201d, a Bench \nheaded by Justice HS Bedi said.<\/p>\n\n\n\n
The State\u2019s failure in taking expeditious decision amounted to violation of condemned prisoners\u2019 right to live with dignity guaranteed under Article 21 of the Constitution, it had said.<\/p>\n\n\n\n
\u201cThere can be no justification for the execution of a prisoner after \nmuch delay\u2026the cruelty of capital punishment lies not only in the \nexecution itself and the pain incident thereto, but also in the \nde-humanising effects of the lengthy imprisonment prior to \nexecution\u2026What makes it worse for the prisoner is the indifference and \nennui which ultimately develops in the family, brought about by a \ncombination of resignation, exhaustion, and despair,\u201d the top court had \nsaid.<\/p>\n\n\n\n
Further, in Shatrughan Chauhan\u2019s case (2014), a three-judge Bench \nheaded by Justice P Sathasivam said when there is \u201cunreasonable, \nunexplained and exorbitant\u201d delay in disposing of mercy petitions, \ncourts are duty-bound to step in. The top court had said there should be\n a gap of 14 days from the date of rejection of mercy petition and \nexecution of a death-row convict.<\/p>\n\n\n\n
By its judicious verdicts, the Supreme Court has managed to check \narbitrariness on the part of the State. However, with the four convicts \nin the Nirbhaya case delaying their execution by strategically availing \nof their legal and constitutional remedies one by one, the Centre has \nmoved the Supreme Court, saying the court\u2019s rulings in death penalty \ncases are convict-centric and that it should lay down a set of \nvictim-centric guidelines.<\/p>\n\n\n\n
The Centre has urged the top court \u201cto clarify and direct that if the\n convict of death sentence wants to file mercy petition, it would be \nmandatory for a convict of death sentence to do so only within a period \nof seven days from the date of receipt of death warrant issued by the \ncompetent court.\u201d<\/p>\n\n\n\n
It\u2019s not an easy task to get a guilty verdict in a capital crime. \nOriginally, for offences where the death penalty was an option, Section \n367(5) of the Code of Criminal Procedure (CrPC) 1898 required courts to \nrecord reasons where they decided not to impose death sentence. In 1955,\n Parliament repealed Section 367(5), CrPC 1898, significantly altering \nthe position of the death sentence. The death penalty was no longer the \nnorm, and courts did not need special reasons for why they were not \nimposing the death penalty in cases where it was a prescribed \npunishment.<\/ins><\/p>\n\n\n\n When the CrPC was re-enacted in 1973, Section 354(3) required courts \nto record special reasons for awarding death sentence. Further, Section \n366 of CrPC mandates that the convict shall not be executed unless the \ndeath sentence is confirmed by the high court concerned.<\/p>\n\n\n\n In case the convict\u2019s death sentence is confirmed by the high court, \nhe\/she can challenge it before the Supreme Court in appeal. After \ndismissal of his appeal, he has the option of filing a review petition \nand then a curative petition. Thereafter, the convict can file mercy \npetition before the president under Article 72 of the Constitution. Even\n the dismissal of mercy petition by the President can be challenged \nbefore the Supreme Court.<\/p>\n\n\n\n As pointed out by the Centre, it\u2019s not that the convict doesn\u2019t get enough opportunity to prove his\/her innocence.<\/p>\n\n\n\n But the real question is about finality of death penalty. Noting that\n finality of death penalty was extremely important; Chief Justice of \nIndia SA Bobde had last month said a condemned prisoner should not be \nunder impression that it was an open-ended question.<\/p>\n\n\n\n It would be in the interest of both the convicts and the victims, if \nthe top court fixes a reasonable timeframe for death-row convicts to \nexhaust their legal remedies; lest it becomes an endless agonising wait \nfor both sides, besides the society at large which is a legitimate \nstakeholder in the entire process.<\/ins><\/p>\n\n\n\n But binding the President in a timeframe to decide mercy petitions \nwould not be advisable as the Executive is supposed to take care of \nsituations and circumstances \u2014 including law and order \u2014 that may be \nbeyond the imagination of courts.<\/p>\n\n\n\n One would agree with the top court\u2019s opinion in Shatrughan Chauhan\u2019s \ncase that \u201cexercising of power (of clemency) under Article 72\/161 by the\n President or the Governor is a constitutional obligation and not a mere\n prerogative. Considering the high status of office, the Constitutional \nframers did not stipulate any outer time limit for disposing of the \nmercy petitions under the said Articles, which means it should be \ndecided within reasonable time.\u201d<\/p>\n