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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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)

Related:

Death Penalty MUST be Abolished!

Is death penalty a deterrent against sexual crimes against women?

Death Penalty In POCSO Act Imperils Child Victims Of Sexual Offences

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On February 18, 2022, a Special Court, designated for speedy trial of the accused in the 2008 Ahmedabad serial blasts, handed the death sentence to 38 of 49 convicts. The remaining eleven were awarded life terms in jail. A few days earlier, these 49 were convicted by the Special Judge who also acquitted 38 other accused in the case. The convicted were apparently responsible for exploding as many as 22 bombs in an hour in Ahmedabad, on July 26, 2008, killing 56 people and leaving over 200 injured, in different parts of the city.

There was plenty of ‘celebration’ in Ahmedabad city, after the stringent punishment was announced. The Twitter handle of the Ahmedabad BJP tweeted a highly irresponsible and insensitive caricature of some Muslim-looking men being hanged with the national motto ‘Satyameva Jayate’ emblazoned alongside. Twitter finally pulled down this tweet after they received an avalanche of protests from everywhere! The defence lawyers said the death penalty for the 38 convicts is the highest in a single case in the country; in 1998, a TADA court had handed the death sentence to 26 accused in the assassination of the former Prime Minister Rajiv Gandhi. The convicted will apparently appeal the sentences.

No one condones the crime they were involved in! Any act of violence, be it serial bombing or domestic violence or for that matter even hate speeches which could lead to violence- must be condemned unequivocally, addressed squarely and nipped in the bud as early as possible! Appropriate punishment must be meted out to the perpetrators of all violence (it does not matter who they are) particularly the heinous ones. There are certainly no two ways or two opinions about that.

Interestingly, February 27 – 28 (and the weeks following) will commemorate full twenty years since the 2002 Gujarat Carnage (which many refer to as ‘genocide’). The bogey (S-6) of the Sabarmati Express from Faizabad to Ahmedabad was set on fire, early morning on February 27, 2002 resulting in the tragic death of fifty-nine passengers. Nothing untoward happened that day in Gujarat or anywhere else.

What followed more than twenty-four hours later and only in Gujarat, was however, a brutal carnage! Apparently (and this from eye witness accounts), the Chief Minister of the State convened a meeting of some high-level BJP and Government functionaries very late evening of 27 February. What transpired at this meeting has two different versions – but the actions that resulted were blatantly obvious: Muslims all over Gujarat were brutalized, raped, dispossessed of their lands and houses and murdered. The intensity of violence for days on, can be easily categorised as a crime against humanity. At least two thousand Muslims were killed and thousands more were dispossessed of their houses and lands, their property looted and burned and affected in every possible way. Numbers pale into insignificance, when one recollects the brutality of what took place. For weeks and then months, rampaging mobs indulged in some of the most despicable acts. Besides, the law-and-order mechanism had not merely abdicated its responsibility but were also seen actively involved in this carnage

Thanks to the dogged and relentless efforts of concerned citizens and organisations – the Gujarat Carnage then and today, is still on the radar. There certainly have been some small triumphs in this pursuit for justice and truth. That is certainly not enough. The biggest perpetrators and the masterminds of this Crime against Humanity- still roam the streets fearlessly as they continue to mainstream their fascist agenda of hate and vilification, of divisiveness and denigration, of exclusiveness and violence. Some of the linchpins today rule the country. They have succeeded in generating a palpable presence in the hearts and minds of millions through their anti-Constitutional methods of falsehood and vindictiveness!

But none of the perpetrators of this bloodiest chapter in the history of independent India were given the ‘death penalty’ or for that matter even exemplary punishment. Some key persons who were convicted and sent to jail were in a matter of time even released on bail. Today, they happily enjoy their freedom protected by the most powerful of the land! That is the pathetic state of our criminal justice system!

The key question then is whether they should have been given the death penalty too? The answer is a clear and unequivocal ‘NO’.  Only God is the author of life and death. No one, not even the State, has the right to take the life of anyone! The death penalty must be abolished! It is a barbaric act and not in sync with civilised society anywhere. No violence can be justified; no murder can be rectified; death penalty however is not the answer! Objective studies clearly demonstrate that in nations and societies where the death penalty has been abolished, the crime rate has decreased dramatically.

Amnesty International states that at the end of 2020, as many as 108 countries had abolished the death penalty in law for all crimes (the number has changed since then;  besides, on January 20, 2022, the Parliament of Papua New Guinea decided to abolish the death penalty) and 144 countries have abolished the death penalty in law or practice; 28 countries have effectively abolished the death penalty by not executing anyone in the past 10 years, and 55 countries still retain the death penalty for ordinary crimes.

The International Commission Against Death Penalty (ICDP) enunciates four major reasons why the death penalty should be abolished:

(i)               the risk of executing innocent people exists in any justice system,

(ii)              the arbitrary application of the death penalty can never be ruled out

(iii)            the death penalty is incompatible with human rights and human dignity

(iv)            the death penalty does not deter crime effectively.

Some time ago, in a message to the ICDP, Pope Francis said, “Today the death penalty is inadmissible, no matter how serious the crime committed; capital punishment contradicts God’s plan for man and society and does not render justice to the victims but rather fosters vengeance.”

‘Dead Man Walking’ is a powerful film based on the life of Sr. Helen Prejean. This 1995 American film stars Susan Sarandon (as Sr. Helen) and Sean Penn (as a prisoner Mathew Poncelet on death row). Sarandon received the ‘Academy Award for Best Actress’ for her stellar role in this film. The film highlights the relationship between Sr. Helen and Mathew first through correspondence and then by personal visits by Sr. Helen both to Mathew and his family. She desperately tries to either get a pardon for Mathew or his death sentenced commuted to life imprisonment. Mathew has ‘apparently’ murdered a teenage couple but till the very end continues to be arrogant, racist and sexist without demonstrating the slightest bit of remorse. He denies he ever killed the teenagers. Sr. Helen’s efforts are all in vain and Mathew is finally executed but not before he finally admits to Sr. Helen that he had done that dastardly deed and asks forgiveness.

Sr. Helen Prejean is no ordinary Nun.  She is a member of the Congregation of St. Joseph in the United States and for several years now she has been fighting against capital punishment through her ‘Ministry against the death penalty’. On her website, she writes “the death penalty is one of the great moral issues facing our country, yet most people rarely think about it and very few of us take the time to delve deeply enough into this issue to be able to make an inform decision about it’. Sr. Helen’s fight against death penalty has paid rich dividends and has certainly impacted on the Social Teaching of the Church. She is not alone in this struggle as more individuals and organisations, all across the globe, join the campaign against this barbaric act.

On October 3, 2020, Pope Francis gave to the world his powerful and path-breaking Encyclical, ‘Fratelli Tutti’ (Brothers and Sisters All). In his Encyclical he devotes eight paras (#263- 270) dealing with the ‘death penalty’. He does give any room for ambiguity when he emphatically states, “There is yet another way to eliminate others, one aimed not at countries but at individuals. It is the death penalty. Saint John Paul II stated clearly and firmly that the death penalty is inadequate from a moral standpoint and no longer necessary from that of penal justice. There can be no stepping back from this position. Today we state clearly that “the death penalty is inadmissible” and the Church is firmly committed to calling for its abolition worldwide.” (#263) With ‘Fratelli Tutti’ Pope Francis has moved opposition to the death penalty into the foreground of Catholic social teaching, completing the church’s long journey of mercy and reconciliation. ‘Mercy has been his consistent and pet spiritual theme!

There is another significant para in this section; so applicable to the death sentence given to the accused of the Ahmedabad serial bombing. Pope Francis says, “The arguments against the death penalty are numerous and well-known. The Church has rightly called attention to several of these, such as the possibility of judicial error and the use made of such punishment by totalitarian and dictatorial regimes as a means of suppressing political dissidence or persecuting religious and cultural minorities, all victims whom the legislation of those regimes consider ‘delinquents. All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom. I would link this to life imprisonment… A life sentence is a secret death penalty”.” (#268). Are Christians (and particularly Catholics) aware of this Church teaching? Sadly, ‘Fratelli Tutti’ has not been made an essential dimension of Church Teaching by clerics who do not want to get out of their comfort zones! Did we hear any of our Bishops going public in condemning this latest death penalty sentence?  On the other hand, some citizens who tweeted against the judgement were immediately trolled by the ‘bhakts’ with derogatory comments!

Commenting on Pope Francis’ catechesis on the death penalty in ‘Fratelli Tutti’, Sr. Helen Prejean says, “I rejoice in Pope Francis’s ringing proclamation of the inviolable dignity of all human life, even the life of murderers, and I am heartened by the church’s unequivocal opposition to governments’ use of the death penalty in all instances. In killing chambers, I’ve seen close-up the torture and suffering of human beings, rendered defenseless and killed by the state, their lives stripped of all dignity. I rejoice that now this clarity of church teaching will help end this unspeakable suffering and spark the Gospel of Jesus to be lived in its fullness: restoration of human life, not humiliation, torture and execution.” She goes on to challenge all Catholics to put Pope Francis’ teaching into concrete action saying, “Devotional assent is not enough. Unless we heed the Holy Father’s commitment to work for abolition of the death penalty, his words, however inspiring, will remain just that: words on a page, stillborn, an annunciation, but no incarnation. In us, may these words live!” Do we have the spiritual depth and the prophetic courage to face this challenge?

No act of violence can be justified anywhere; more so, when the victims are innocent people.  All dastardly acts have to be condemned strongly; but two wrongs have never made a right; just because a person has committed a particular crime, the answer certainly is not the death penalty. The State has the duty to protect the ‘right to life’ of every single citizen. This is enshrined in the Universal Declaration of Human Rights and in the Constitution of India. By espousing capital punishment, the State equates itself with the perpetrator. The death penalty is cruel, inhuman and degrading. Today more than two thirds of the world have abolished the death penalty. It is time that India does so immediately too!

Do we need a Sr Helen Prejean in our midst to remind us of our responsibility? Can we allow the words of Martin Luther King, “returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars”; or for that matter, those of Mahatma Gandhi, “I cannot in all conscience agree to anyone being sent to gallows. God alone can take life because He alone gives it…”– to permeate our hearts and minds? Above all, do we have the humanity to say a full-throated “NO” to the death penalty? The death penalty must be abolished! Let us begin by demanding that the death penalty given to the 38 serial bombers is revoked immediately!

*Fr. Cedric Prakash SJ is a human rights, reconciliation and peace activist/writer.

Other pieces by Fr. Cedric Prakash SJ:

Towards Human Fraternity

‘Abide With Me’ will Stay Forever!

Bashing Christians in India

Wider “WE” is Witness!

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