DEATH PENALTY GUIDELINES

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 DEATH PENALTY GUIDELINES

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• We want death penalty: By 2014, a strong re-emergence of the popularity of the death penalty was seen in public consciousness. It was being felt that death penalty could cure the diseases like terrorism and sexual violence. The multiple mercy petitions rejected by then President Mukherjee added to the feeling. But sadly, there is an inbuilt unfairness in the administration of death penalty in India.
• 2014 judgement: However, in January 2014, a judgement delivered by a three-judge bench of the Supreme Court commuted the death sentence of 15 death row convicts in the "Shatrughan Chauhan versus Union of India case", seeking to correct that imbalance. The guidelines issued in the judgement will prove to be a crucial step towards ensuring that India adopts a more humane process committed to the rule of law until the very end in carrying out death sentences.
• Secret executions: After the secret executions of Ajmal Kasab and Afzal Guru, executions of Maganlal Barela in Jabalpur Central Jail along with that of Shivu and Jadeswamy in Belgaum Central Jail were stayed barely a few hours before their scheduled hour of hanging. Why? It was said that they were not given an opportunity to challenge the rejection of their mercy petitions.
• Shatrughan Chauhan case: In this case, the rejection of mercy petitions by the President was challenged on the grounds of undue delay in disposal of their mercy petitions, mental illness, and solitary confinement as supervening grounds.

1. The most significant legal determination in the judgement authored by Chief Justice P. Sathasivam was that undue delay by the President in rejecting mercy to a death row convict amounts to torture. 
2. Further, such inordinate and unexplained delay by the President is sufficient in itself to entitle the convict to a commutation. While the court refused to fix a certain number of years above which undue delay would amount to torture, the time taken by the President in rejecting mercy petitions of the 15 prisoners ranged between 11 years and 1.5 years.
3. The court commuted the death sentences of 13 prisoners on the basis of undue delay while commuting the sentences of Barela and Sundar Singh on grounds of their mental illness. 
4. Sathasivam, along with justices Ranjan Gogoi and Shiva Kirti Singh have taken the view that the crime in question is irrelevant while deciding the effects of keeping a death row prisoner waiting for a decision on his or her mercy petition. The suffering that comes with anticipating death on an every day basis for the judges amounted to torture, which was violative of the right to life under Article 21 of the Constitution.

• Rejecting own verdict: Having held that the nature of crime is irrelevant in deciding the impact of delay, the judges also declared the April 2013 decision of the SC in the Devender Pal Singh Bhullar case to be characterized by lack of due regard to the law. 

1. The holding by a two-judge bench in the Bhullar case was that those sentenced to death under anti-terror laws could not invoke the argument of undue delay to argue for commutation was held to be an incorrect application of an earlier decision of the Supreme Court in the Triveniben case (1988). 
2. In declaring Bhullar per incuriam, the Chief Justice has done away with one of the most regressive judgements that the apex court handed down in 2013.

• About the family: The judges are aware of the interests of the victim’s family but they are clear that the relevant phase to account for such interests is at the sentencing stage during the trial and the subsequent confirmation proceedings before the high court and the Supreme Court. They found it unacceptable that this argument could be invoked to trump the right to life claims of prisoners who had been subjected to treatment that amounted to torture.
• Separation of powers: The court has deftly addressed the concerns of separation of powers raised in this case. 

1. It must be remembered that in all these cases, the executive had exercised its power to reject mercy to all 15 prisoners under Article 72 of the Constitution. 
2. It was argued that the court would be usurping the powers of the executive if it commuted the death sentences after mercy was rejected but the court has made it clear that it was not questioning the power of the President to reject mercy petition as he or she deemed fit. 
3. The court maintained that it has extremely limited powers in exercising judicial review over the President’s decision. However, it said that enforcement of rights was squarely within its jurisdiction and that the determination of the content of fundamental rights was best left to the judiciary. 
4. The court was of the view that these cases represented a grave violation of the right to life under Article 21 and that it was bound to protect the rights of all persons.

• 2019 and 2020: The central govt. appealed to the S.C. that the 2014 guidelines were "accused-centric" and the victim, family and society were not considered in it. Govt. said that different accused in same case can cleverly use different remedies to delay executions. The Centre had filed review and curative petitions against the Shatrughan case, but both were rejected in 2014 and 2017, respectively.

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