A 3-judge bench of the Supreme Court comprising of justices Abhay S Oka, Ahsanuddin Amanullah and Augistine George Masih pronounced its judgement in the case of State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr on the critical issue of delays in the execution of death sentences in India and their implications on a convict’s fundamental rights. The Supreme Court, through a detailed examination of the case facts and existing legal precedent, reaffirmed that inordinate and unexplained delays in carrying out a death sentence violate Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty.
Relevant provisions
Article 21 of the Indian Constitution: This article guarantees the right to life and personal liberty, and states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Sections 413 and 414 of the Criminal Procedure Code (CrPC) of 1973: These sections outline the procedure for the execution of death sentences.
Section 413 states: “When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.”
Section 414 states: “When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.”
These sections essentially mean that the sessions court should issue a warrant, after it gets a confirmation of a death sentence by the High Court.
Articles 72 and 161 of the Indian Constitution: These articles empower the President of India and the Governors of states, respectively, to grant pardons, reprieves, respites, or remissions of punishment.
The Supreme Court has held in Shatrughan Chauhan vs. Union of India [ 4 (2014) 3 SCC 1] that the exercise of the powers bestowed by Articles 72 and 161 is not a mere prerogative but a constitutional obligation that must be fulfilled with due care and diligence. The key terms associated with these powers are:
- Pardon: This completely absolves the individual of the offense, removing both the conviction and the sentence, along with any associated disqualifications. The individual is treated as innocent, as if the offense had never been committed.
- Commutation: This involves substituting a form of punishment with a less severe one. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.
- Remission: This entails reducing the duration of the sentence without altering its nature. For instance, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year, but the imprisonment remains rigorous.
- Respite: This refers to awarding a lesser sentence in place of the one originally imposed, due to special circumstances such as the physical disability of the convict or the pregnancy of a woman offender.
- Reprieve: This implies a temporary suspension of the execution of a sentence, particularly a death sentence, to allow the convict time to seek a pardon or commutation.
It is important to note that the President’s pardoning powers are broader than those of a Governor. The President can grant pardons in cases involving court-martial sentences and can pardon death sentences, whereas a Governor does not have these powers.
These clemency powers serve as a mechanism to correct potential judicial errors, provide relief from unduly harsh sentences, and uphold the principles of justice and mercy within the Indian legal framework.
Facts of the case
The case involved two convicts, Pradeep Yashwant Kokade and Purushottam Dasrath Borate, who were sentenced to death for the rape and murder of a young woman. After the confirmation of their sentences by both the High Court and the Supreme Court, the convicts filed mercy petitions with the Governor of Maharashtra and subsequently with the President of India. While both petitions were ultimately rejected, the process was marred by significant delays.
Further compounding the issue was the inordinate delay by the Sessions Court in issuing the warrants for the execution of the death sentence. This prompted the convicts to challenge the delays, arguing that they amounted to a violation of their fundamental rights under Article 21.
The Supreme Court, while upholding the High Court’s decision to commute the death sentence to a fixed term of 35 years, analysed the various stages of the delay. They found that there were undue and unexplained delays in both the processing of the mercy petitions by the executive authorities and the issuance of the execution warrant by the Sessions Court.
The Court highlighted three distinct phases of delay:
- The period between the filing of the mercy petitions with the Governor of Maharashtra and their subsequent rejection.
- The time taken for the processing and disposal of the mercy petitions filed with the President of India.
- The delay in the issuance of the execution warrant by the Sessions Court after the rejection of the mercy petitions by the President.
In examining each of these phases, the Court remarked that the approach of the executive, and “especially the state government, has been casual and negligent. For instance, the Court pointed out the five-month gap between the confirmation that the convicts had not filed a review petition and the preparation of a note for the Governor’s consideration regarding the mercy petition. The Court noted that this time was spent on unnecessary correspondence between various officials and could have been avoided with more proactive and efficient handling of the matter [Paras 30, 36].
The Supreme Court, in its judgment, underscored the importance of a timely and efficient legal process, especially in cases involving the death penalty.
The Court held that inordinate delays in carrying out a death sentence cause mental agony and psychological distress to the convict [Para 42]. This, the Court concluded, is antithetical to the principles enshrined in Article 21 and constitutes a violation of the convict’s fundamental rights.
The judgment, therefore, draws heavily on the principles established in previous cases like Shatrughan Chauhan & Anr. v. Union of India & Ors. and Triveniben v. State of Gujarat [(1989) 1 SCC 678] to emphasize that while the death penalty itself may be constitutional in certain “rarest of rare” cases, the process leading to its execution must adhere to the principles of fairness, justice, and due process [Para 20]
To address the systemic issues leading to these delays, the Supreme Court issued a comprehensive set of guidelines aimed at streamlining the process of handling mercy petitions and issuing execution warrants [Para 43]. These guidelines included:
- Establishing Dedicated Cells: The Court directed all State Governments and Union Territories to establish dedicated cells within their Home or Prison Departments specifically to handle mercy petitions. These cells, staffed by designated officers, are tasked with ensuring the prompt and efficient processing of mercy petitions within stipulated timeframes.
- Improving Coordination and Communication: The Court emphasized the need for better coordination and communication between the various stakeholders involved in the process, including the prison authorities, the police, the State Government, and the Sessions Court. They encouraged the use of email for correspondence to expedite communication, except in cases involving confidential information.
- Proactive Role of the Sessions Court: The Court directed the Sessions Courts to take a more proactive role in overseeing the process. They instructed the Sessions Court to periodically review the status of the cases where death sentences have been awarded and to issue notices to the State authorities to ensure that they are kept abreast of the progress of appeals, review petitions, and mercy petitions.
- Timely Issuance of Execution Warrants: The Court also outlined a detailed procedure for the Sessions Court to follow in issuing execution warrants. This includes:
- The mandatory issuance of notice to the convict informing them of the intent to issue a warrant.
- The provision of legal aid to the convict to challenge the warrant if they so desire.
- The specification of a precise date and time for the execution in the warrant, as opposed to a range of dates, to eliminate uncertainty for the convict.
- A mandatory gap of at least 15 days between the date the convict receives the warrant and the scheduled execution date, allowing them sufficient time to pursue legal remedies or meet their families.
The Court’s emphasis on ensuring that convicts receive proper notice, access to legal aid, and a reasonable time frame to prepare for the execution is crucial in upholding their fundamental rights. The judgment also stresses the importance of providing convicts with a clear and definitive execution date to minimize the psychological distress caused by prolonged uncertainty.
In addition to these structural changes, the Court directed all State Governments to issue formal office orders or executive orders incorporating the guidelines outlined in the judgment, ensuring that these directives are implemented effectively.
The detailed guidelines and directions issued by the Court aim to address the systemic delays that have plagued the execution process, ensuring that it adheres to the principles of fairness, justice, and human dignity enshrined in the Indian Constitution. This judgment is likely to have a lasting impact on the administration of capital punishment in India, setting a precedent for greater accountability, transparency, and efficiency in the legal process.
(The author is part of the organisations legal research team)
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