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Dead Man Waiting

The exercise of pardon by the president of India is often delayed so long that legal opinion has, at times, considered it sufficient ground to commute the death sentence. This delay is partly due to the confusion over the nature of the pardon which has its origins in the monarch's grace but has been redefined as a constitutional duty of the republic to be undertaken for the public good.

COMMENTARY

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Dead Man Waiting Anand Shankar Jha Triveniben case (1989), justice Jagannatha Shetty while considering the issue of the validity of the death sentence in light of the delay caused in the disposal of the mercy petition, cited the saying:2

The exercise of pardon by the president of India is often delayed so long that legal opinion has, at times, considered it sufficient ground to commute the death sentence. This delay is partly due to the confusion over the nature of the pardon which has its origins in the monarch’s grace but has been redefined as a constitutional duty of the republic to be undertaken for the public good.

Anand Shankar Jha (anandshankarjha@gmail. com) is an advocate in the Supreme Court of India.

Economic & Political Weekly

EPW
octoBER 22, 2011

I
n 1983, justice O Chinappa Reddy while deciding the seminal case of

T V Vatheeswaran vs State of Tamil

Nadu,1 opened his judgment stating that,

“a prisoner condemned to death over eight

years ago claims that it is not lawful to

hang him now”. This question still looms

large and often resurfaces whenever the

president rejects a mercy petition.

In the recent past, the president of India rejected mercy petitions filed by three convicts of the Rajiv Gandhi assassination case after a delay of 11 years. This raised many questions of constitutional significance. One such question was posed by the bench comprising justice B Sudershan Reddy (retired) and justice S S Nijjar, when a notice was issued to the Ministry of Home Affairs, asking why mercy petitions should not be disposed of in a definite and reasonable time frame. Alternatively, does the time taken by the executive in exercise of prerogative clemency, which often runs into years and sometime decades, render the sentence unconstitutional?

The limited scope of judicial review in cases relating to the exercise of prerogative clemency is well settled. However, the delay in rejection of mercy petitions runs in the teeth of the fundamental rights guaranteed by the Constitution. In the

vol xlvi no 43

Chita Chinta Dwayoormadhya, Chinta tatra gariyasi, Chita Dahati Nirjivam, Chinta dahati Sajeevakam.

(As between a funeral fire and mental worry, it is the latter which is more devastating, for, the funeral fire burns only the dead body while the mental worry burns the living one.)

In a few cases in the past, the Supreme Court has commuted the death sentences after the president took an inordinately long time in rejecting the mercy petitions, considering the dehumanising character of the delay. However, it has always remained shy of either fixing a time limit for disposal of mercy petition or directing the executive to frame essential guidelines for the same. This article does not purport to express any views on the merits of capital punishment. It is the legal implications of the delay in disposal of mercy petitions that will be examined. It will also not dwell on the issues of conscious delay caused by the executive aimed to aid and assist the person condemned to death.

Clemency: Prerogative or Constitutional Duty

The constitutional scheme mandates a dministration of justice through courts and a duty on the executive to enforce

COMMENTARY

d ecisions rendered by it. The exercise of pardoning power has long been considered an act of grace and kindness. In England, the king’s coronation speech has been that “he will cause justice to be executed in mercy” (Seervai 1991: 2094). However, the prerogative of the executive to grant clemency has no more remained merely an act of grace and mercy. Justice Holmes of the United States supreme court redefined the scope of the executive’s pardoning power. He observed:3

Pardoning in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of ultimate authority that the public welfare will be better served by inflicting less than the judgment fixed.

It needs to be understood that this shift in approach has become part of the constitutional jurisprudence of democracies where the executive has been vested with the power of clemency. Pardon is no more an act of mercy, but a bounded duty, which needs to be discharged only if it furthers the objective of “public welfare”. It is not open to the head of the executive to inordinately delay the exercise to defeat its very purpose.

Article 72 of our Constitution empowers the president to grant pardons and to suspend, remit or commute sentences. Under Article 161 of the Constitution, similar is the power of the governor to give relief to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. The time taken by the executive for disposal of mercy petitions is essentially meant for evaluating the nature of the case which also depends on the number of mercy petitions. The president, while exercising the power to pardon, acts on the aid and advice of the union council of ministers. The president could return the advice for reconsideration, but if it is resubmitted, it is binding on the president.4 It is this lack of flexibility to exercise pardoning power on the part of the president, coupled with the onerous responsibility of confirming the capital punishment, that causes these delays. Since the 1990s, presidents have adopted an option not mentioned in the Constitution – that is to indefinitely delay the decision, as there is no time limit for taking the decision.5 In some aspects, it is similar to the exercise of “pocket veto” by the president of India.6

The duty to decide on the mercy petitions is in fact a “constitutional duty” of the highest executive. In the opinion of T R Andhyarujina, senior advocate and former solicitor general:7

It is a misnomer to describe the petitions made to the president and governors under Articles 72 and 161 of the Constitution by the convicted persons as mercy petitions. The Constitution confers a right on such convicts and a duty on the presidents and governors (in reality the respective government) to duly consider the petition and take [action] on them expeditiously.

In the case of Jagdish vs State of Madhya Pradesh (2009), the Supreme Court reaffirmed the “constitutional duty” of the executive by recognising that the condemned prisoner and his suffering relatives have a right in insisting that decision on mercy petitions should be taken within a reasonable period.8

Judicial Response

The trauma and stress during the inevitable long wait between the imposition of the sentence and the actual infliction of death is better known as the “death row phenomenon”. Courts across the globe

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have recognised the dehumanising effect of the procrastination due to lengthy imprisonment prior to execution.9 In Noel Riley vs Attorney General of Jamaica,10 Leslie Scarman of the judicial committee of the privy council, observed:

It is no exaggeration, therefore, to say that the jurisprudence of the civilised world, much of which is derived from common law principles and prohibition against cruel and unusual punishments in the English Bill of Rights, has recognised and acknowledged the prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading. As the Supreme Court of California commented in Anderson case, it is cruel and has dehumanising effects. Sentence of death is one thing: sentence of death followed by lengthy imprisonment prior to execution is another.

Judicial footprints on this issue are marked by three seminal pronouncements, i e, the T V Vatheeswaran’s case, Sher Singh’s case and Triveniben’s case.11 Courts for long entertained petitions for commutation of sentences due to inordinate delay, either due to lengthy judicial proceedings or the time taken in disposal of mercy petitions.12 In T V Vatheeswaran’s case, the division bench of the Supreme Court went a step further to observe:

There are provisions in the Constitution (Articles 72 and 161) which invest the president

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COMMENTARY

and the governor with power to suspend, remit or commute sentence of death. Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in execution of a sentence of death to invoke Article 21 and demand the quashing of sentence of death.

Thereafter, in Sher Singh’s case,13 in a powerful indictment, a three-judge bench of the Supreme Court observed:

We must take this opportunity to impress upon the Government of India and the state governments that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed off within a period of three months from the date on which it is received.

The Constitution bench of the Supreme Court in Triveniben’s case (1989) considered this issue in detail, and observed that delay in execution consists of two parts. The first part covers the time taken in the judicial proceedings for trial, appeal and review. The second part is the time taken by the executive in exercise of prerogative clemency. With respect to the first part, the court rightly observed that the time taken by way of trial, appeal and review is for the benefit of the accused and was intended to ensure a fair trial. However, it exercised restraint in fixing any time limit for the executive to dispose of the mercy petitions and overruled the “two-year” rule laid down in the T V Vatheeswaran case. However, the Court did take into account the implications of undue delays in disposing mercy petitions, and observed14:

The Court may only consider whether there was undue delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay may be a significant factor, but that by itself cannot render the execution unconstitutional.

Delays and Dilemma

The Government of India recently ac knowledged in reply to a right to information application, that as of 13 July 2011, there had awarded the death sentence more than a decade ago.

The interest of the “dead man waiting”, is to take advantage of the delay and he has no reason to agitate unless the petition stands rejected. Basic human nature tells us that we will endure hardship, rather than accept death. Humans will cling to the slimmest hope of life, enduring dehumanising conditions for years, rather than acquiesce to execution (Hudson 2000: 855). Can we really blame a person who acts on this survival instinct?

Furthermore, though a time limit cannot be fixed, a certain discipline must be imbibed in the executive practice to dispose of mercy petitions within a reasonable period. In 2009, the Supreme Court once again reminded the executive of its r esponsibility in the following words:16

The observations reproduced above become extremely relevant as of today on account of the pendency of twenty-six mercy petitions before the president of India, in some cases, where the courts had awarded the death sentences more than a decade ago. We too, take this opportunity to remind the governments concerned of their obligation under the aforementioned statutory and constitutional provisions.

Delays involved in disposal of mercy petitions which often run into years are not only because of the onerous nature of responsibility and political considerations, but because of a confusion that the executive is performing “an act of grace” rather than a constitutional duty while disposing of a mercy petition. Often, the State finds itself in a difficult position when it has to explain the “embarrassing or yawning gap” leading to avoidable d elays in disposal of such petitions.17 F inally, in my view, fixing a time limit may send the wrong signal regarding the period within which execution must take place and fetter judicial discretion (which must be exercised) on a case to case basis. Nevertheless, failure to dispose of a mercy petition within a reasonable time must entitle the prisoner to have the benefit of commutation of sentence.

Notes

5 See V Venkatesan, “Wait for Mercy”, now available at http://www.frontlineonnet.com/fl2818/stories/20110909281804500.htm (accessed on 10 September 2011).

6 The president has the power to resend a bill for reconsideration, but if the advice is resubmitted it is binding on the president. However, the Constitution provides no time limit for the president to grant assent. Withholding of assent by president is known in legal and constitutional circles as the “pocket veto” and has been used on a number of occasions against controversial bills. President Zail Singh exercised pocket veto when the Indian Postal Amendment Bill, 1986 was resubmitted to him for assent.

7 T R Andhyarujina, “Mercy Petitions: Inhumane Procrastination”, now available at http://www. thehindu.com/opinion/lead/article492223.ece (accessed on 31 August 2011).

8 (2009) 9 SCC 495, Para 48. (Per H.S. Bedi J.). 9 See Pratt and Morgan vs Jamaica [1993] 4 All ER

769: [194] 2 AC 1; Soering vs United Kingdom, ECHR (1989) Ser. A 161. 10 [1982] 2 All ER 469; [1983] 1 AC 719.

11 In between the Vatheeswaran Case (1983) and Triveniben’s Case (1989), a three-judge bench of S upreme Court in Sher Singh vs State of Punjab (1983) 2 SCC 344, overruled the “two-year” benchmark in Vatheeswaran Case.

12 Piare Dusadh vs Emperor, AIR 1944 FC 1; Ediga Anamma vs State of AP (1974) 4 SCC 443; Bhagwan Bux Singh vs State of UP, (1978) 1 SCC 214; State of UP vs Sahai, (1982) 1 SCC 352.

13 (1983) 2 SCC 344. 14 Supra Note 2. 15 V Venkatesan, ibid. 16 Supra Note 8, Para 48 (Per H S Bedi J). 17 Daya Singh vs Union of India & Others (1991) 3

SCC 61, Para 7 (Per L M Sharma J). In this case the delay in disposal of mercy petitions by the Governor of Haryana was called in question. Union of India submitted that the governor on receipt of mercy petitions forwarded it for the opinion of the president who in turn forwarded it to the Ministry of Law and Justice. In this period the matter remained in consideration for more than two years. The additional solicitor general (then present) acknowledged the delay as an “embarrassing gap” and the Court referred to the same as an avoidable delay.

References

Hudson, Patrick (2000): “Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under International Law?”, 11 European Journal of International Law 833.

Seervai, H M (1991): Constitutional Law of India (Lucknow: Eastern Law House).

Cases

Bhagwan Bux Singh vs State of UP (1978) 1 SCC 214. Daya Singh vs Union of India and Others (1991) 3 SCC 61. Ediga Anamma vs State of AP (1974) 4 SCC 443. Jagdish vs State of Madhya Pradesh (2009) 9 SCC 495 Noel Riley vs Attorney General of Jamaica [1982] 2 All

ER 469; [1983] 1 AC 719. Piare Dusadh vs Emperor, AIR 1944 FC 1. Pratt and Morgan vs Jamaica [1993] 4 All ER 769;

[194] 2 AC 1.

were 32 mercy petitions pending before 1 (1983) 2 SCC 68, at 70.Sher Singh vs State of Punjab (1983) 2 SCC 344. 2 Triveniben vs State of Gujarat (1989) 1 SCC 678, Soering vs United Kingdom, ECHR (1989) Ser. A 161

the president of India.15 This number was

at 714. State of UP vs Sahai (1982) 1 SCC 352.

26 in 2009, and as pointed out by the

3 Biddle vs Perovich (1926) 274 US 480, at 486.T V Vatheeswaran vs State of Tamil Nadu (1983) 2 SCC 68. Supreme Court, in some cases the courts 4 Kehar Singh vs Union of India, AIR 1989 SC 1653.Triveniben vs State of Gujarat (1989) 1 SCC 678.

Economic & Political Weekly

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octoBER 22, 2011 vol xlvi no 43

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