No to Delayed Justice

SC Issues Guidelines On Death Penalty Executions And Mercy Petitions To Avoid Delay In Process

It is most imperative to know that while ruling on a very significant legal point pertaining to death penalty executions and mercy petitions, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled State of Maharashtra & Ors vs Pradeep Yashwant and Anr with Connected Case in Criminal Appeal No. 2831 of 2023 with Criminal Appeal No. 2832 of 2023 and cited in Neutral Citation No.: 2024 INSC 947 and also in 2024 LiveLaw (SC) 963 that was pronounced most recently on December 9, 2024 in the exercise of its criminal appellate jurisdiction has minced just no words to hold in no uncertain terms that after an order of rejection of mercy petitions by the President or Governor is communicated to a death row convict, the sword of Damocles cannot be kept hanging on him for inordinately long time due to the non execution of death warrants. It must be noted that the top court most commendably has directed all the States and Union Territories to constitute a dedicated cell for the prompt processing of the mercy petitions by death row convicts within the timeline laid down by the respective governments. The Bench also held clearly that Sessions Court on receiving order confirming death penalty must immediately issue notice to the public prosecutor seeking information on pending appeals, review/curative petition or mercy plea and periodically monitor pending proceedings to ensure timely issuance of execution warrants once all legal avenues are exhausted.

We see that in this leading case, the Apex Court dismissed the appeals by the State of Maharashtra challenging the 2019 Bombay High Court judgment that commuted the death sentences of two convicts named Pradeep Kokade and Purshottam Borate to life imprisonment with a fixed term of 35 years. This leading case involved the 2007 gang rape and murder of a 22-year-old Pune BPO employee.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself, Hon’ble Mr Justice Ahsanuddin Amanullah and Hon’ble Mr Justice Augustine George Masih sets the ball in motion by first and foremost putting forth in para 1 that, “The main question involved in these appeals is about the effect of delay in executing the death sentence.”

OUR CONCLUSIONS

Most forthrightly, the Bench mandates in para 42 holding that, “We hold that:-

(i) Undue, unexplained and inordinate delay in execution of the sentence of death will entitle the convict to approach this Court under Article 32. However, this Court will only examine the nature of the delay caused and circumstances that ensued after the judicial process finally confirmed the sentence and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be commuted to imprisonment for life;

(ii) Keeping a convict in suspense while considering his mercy petitions by the Governor or the President for an inordinately long time will certainly cause agony to him/her. It creates adverse physical conditions and psychological stress on the convict. Therefore, this Court, while exercising its jurisdiction under Article 32 read with Article 21 of the Constitution, must consider the effect of inordinate delay in disposal of the clemency petition by the highest Constitutional authorities and cannot excuse the agonising delay caused only on the basis of the gravity of the crime;

(iii) It is well established that Article 21 of the Constitution does not end with the pronouncement of the sentence but extends to the stage of execution of that sentence. An inordinate delay in the execution of the sentence of death has a dehumanising effect on the accused. An inordinate and unexplained delay caused by circumstances beyond the prisoners’ control mandates the commutation of a death sentence;

(iv) The above principles will also apply to a case where there is a long and unexplained delay on the part of the Sessions Court in issuing the warrant of execution in accordance with Section 413 or Section 414 of CrPC. After the order of rejection of mercy petitions is communicated to a convict, the sword of Damocles cannot be kept hanging on him for an inordinately long time. This can be very agonising, both mentally and physically. Such inordinate delay will violate his rights under Article 21 of the Constitution. In such a case, this Court will be justified in commuting the death penalty into life imprisonment;

(v) No hard and fast rule can be laid down as regards the length of delay, which can be said to be inordinate. It all depends on the facts of the case. The terms “undue” or “inordinate” cannot be interpreted by applying the rules of mathematics. The Courts, in such cases, deal with human issues and the effect of the delay on individual convicts. What delay is inordinate must depend on the facts of the case;

(vi) A convict can invoke even the jurisdiction of a High Court under Article 226 of the Constitution in the event there is an inordinate and unexplained delay in the execution of the death sentence, post confirmation of the sentence. The same principles will be applied by the High Court, which are summarised above; and,

(vii) It is the duty of the Executive to promptly process the mercy petitions invoking Articles 72 or 161 of the Constitution and forward the petitions along with requisite documents to the concerned constitutional functionary without undue delay.”

OPERATIVE DIRECTIONS

Finally and far most significantly, the Bench then concludes by encapsulating in para 43 what constitutes the cornerstone of this notable judgment postulating that, “Hence, we pass the following order:

(i) The impugned judgment and order, by which the death sentence of the convicts has been commuted to a fixed sentence of thirty-five years of imprisonment, is upheld, and Criminal Appeals are dismissed;

(ii) As regards the mercy petitions, we issue the following directions to all the State Governments and Union Territories:

(A) A dedicated cell shall be constituted by the Home Department or the Prison Department of the State Governments/Union Territories for dealing with mercy petitions. The dedicated cell shall be responsible for the prompt processing of the mercy petitions within the time frame laid down by the respective governments. An officer-in-charge of the dedicated cell shall be nominated by designation who shall receive and issue communications on behalf of the dedicated cell;

(B) An official of the Law and Judiciary or Justice Department of the State Governments/Union Territories should be attached to the dedicated cell so constituted;

(C) All the prisons shall be informed about the designation of the officer-in-charge of the dedicated cell and his address and email ID;

(D) As soon as the Superintendent of Prison/officer-in-charge receives the mercy petitions, he shall immediately forward the copies thereof to the dedicated cell and call for the following details/information from the officer-in-charge of the concerned Police Station and/or the concerned investigation agency;

(a) The criminal antecedents of the convict;

(b) Information about family members of the convict;

(c) Economic condition of the convict and his/her family;

(d) The date of arrest of the convict and the period of incarceration as an undertrial; and,

(e) The date of filing charge sheet and a copy of the committal order, if any.

On receipt of the request made by the jail authorities, the officer-in-charge of the concerned police station shall be under an obligation to furnish the said information to the jail authorities immediately;

(E) On receipt of the said information, without any delay, the jail authorities shall forward the following documents to the officer-in-charge of the dedicated cell and the Secretary of the Home Department of the State Government:

(a) Information furnished as aforesaid by the concerned Police Station with its English translation;

(b) Copy of the First Information Report with its English translation;

(c) Details, such as date of arrest of the convict, date of filing of chargesheet and actual period of incarceration undergone by the convict;

(d) A copy of the committal order, if any, passed by the learned Judicial Magistrate;

(e) A copy of charge-sheet with its English translation;

(f) Report about the conduct of the convict in prison;

(g) Copies of the notes of evidence, all exhibited documents in the trial and copies of statements of convicts under Section 313 of the CrPC with its English translation;

(h) Copies of the judgments of the Sessions Court (with its English translation, if it is in vernacular language), High Court and this Court;

(F) As soon as mercy petitions are received by the dedicated cell, copies of the mercy petitions shall be forwarded to the Secretariats of the Hon’ble Governor of the State or the Hon’ble President of India, as the case may be so that the Secretariat can initiate action at their end;

(G) All correspondence, as far as possible, be made by email, unless confidentiality is involved; and,

(H) The State Government shall issue office orders/executive orders containing guidelines for dealing with the mercy petitions in terms of this judgment.

(iii) The Registry of this Court shall forward copies of this judgment to the Secretaries of the Home Department of the respective State Governments/Union Territories for its implementation. The Secretaries shall report compliance within three months from today to the Registrar (Judicial) of this Court;

(iv) The Sessions Court shall endeavour to follow the following guidelines:

(a) As soon as the order of the High Court confirming or imposing the death sentence is received by the Sessions Court, a note thereof must be taken, and the disposed of case shall be listed on the cause list. The proceedings can be numbered as Misc. Application depending upon the applicable Rules of the procedure. The Sessions Court shall immediately issue notice to the State Public Prosecutor or the investigating agency calling upon them to state whether any appeal or special leave petition has been preferred before this Court and what is the outcome of the said petition/appeal;

(b) If the State Public Prosecutor or the investigating agency reports that the appeal is pending, as soon as the order of this Court confirming or restoring the death sentence is received by the Sessions Court, again, the disposed of case or miscellaneous applications should be listed on the cause list and notice be issued to the State Public Prosecutor or the investigating agency to ascertain whether any review/curative petitions or mercy petitions are pending. If information is received regarding the pendency of review/curative petitions or mercy petitions, the Sessions Court shall keep on listing the disposed of case after intervals of one month so that it gets the information about the status of the pending petitions. This will enable the Sessions Court to issue a warrant for the execution of the death sentence as soon as all the proceedings culminate;

(c) However, before issuing the warrant, notice should be issued to the convict, and the directions issued by the Allahabad High Court in the case of People’s Union for Democratic Rights (PUDR) v Union of India & Ors 2015 SCC OnLine All 143, and as elaborated above, shall be implemented by the Sessions Court;

(d) The Sessions Courts shall consider what is held in Paragraph 25 above;

(e) Copies of the order issuing the warrant and the warrant shall be immediately provided to the convicts, and the Prison authorities must explain the implications thereof to the convicts. If the convict so desires, legal aid be immediately provided to the convicts by the Prison authorities for challenging the warrant. There shall be a gap of fifteen clear days between the date of the receipt of the order as well as warrant by the convict and the actual date of the execution; and,

(f) It shall also be the responsibility of the concerned State Government or the Union Territory administration to apply to the Sessions Court for the issuance of a warrant immediately after the death penalty attains finality and becomes enforceable.

(v) A copy of this judgment shall be forwarded to both the convicts through the Jail Superintendent of the concerned jail.

(vi) A copy of this judgment shall be forwarded to the Registrar Generals of all the High Courts, who in turn shall forward the copies thereof to all the Sessions Courts.

(vii) These disposed of appeals shall be listed on 17th March 2025 for considering compliance.”

In sum, it is high time and what the Apex Court has held most commendably in this leading case pertaining to the guidelines on death penalty execution and mercy petitions must be most strictly and most promptly implemented to avoid delay in the process. It is the bounden duty of the State Government, Union Territories and Centre to ensure that this is implemented at the earliest so that “rule of law” prevails and not “rule of dilly dallying” as we see in so many high profile cases! Let us hope so fervently!