The Telegraph
Wednesday , January 22 , 2014
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Charter of rights ‘till the last breath’

New Delhi, Jan. 21: The Supreme Court has asserted that even a death-row convict is entitled to right to life and liberty till the last breath, commuting the capital punishment of 15 prisoners to life and laying down several guidelines.

The guidelines on death-row convicts also deal with mercy petitions, one of the most contentious issues in the country as successive governments have been accused of sitting on some appeals for clemency while fast-tracking others with an eye on political gain. The 15 prisoners, including some aides of bandit Veerappan, have been taken off death row because no decision was taken on their mercy petitions. ( )

“It is well settled law that executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres (exists permanently) in every person, even death-row prisoners, till the very last breath of their lives,” the court said.

The following are the guidelines announced by the bench of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh.

Solitary confinement

Unconstitutional. The ruling was given after several convicts submitted that solitary confinement subjected them to immense mental torture. The Centre and states had said the prisoners were “only segregated for their own safety”. But the court upheld an earlier ruling that declared solitary confinement as unconstitutional.

Legal aid

Should be provided to the convict at all stages. The prison manuals do not have such a provision after a mercy petition is rejected. But with the court today holding that the convict enjoys right to life and personal liberty (Article 21) till the last breath, legal aid has to be given till the end. Jail superintendents should inform the nearest legal aid centre when a mercy petition is rejected.

Mercy plea procedure

All records must be forwarded at one stroke, not one by one, by the state government to the Union home ministry. After a governor rejects a mercy plea, the state government can forward it to the President through the Centre. Along with the petition, the state is expected to collect police records, the judgments of the trial court, the high court and the Supreme Court and all other documents “at once”, fixing a time limit for forwarding them to the Union home ministry.

The court did not set a time frame but referred to a “reasonable and rational time” and suggested sending “periodical reminders” to the President. “After getting all the details, it is for the ministry of home affairs to send the recommendation/their views to the President within a reasonable and rational time. Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the ministry… to send periodical reminders and to provide required materials for early decision,” the court said.

Documents: Most death-row prisoners are extremely poor and do not have copies of their court papers. Since the availability of these documents is necessary for accessing post-mercy judicial remedies, copies should be furnished to the prisoner within a week by the prison authorities.

Rejection by governor: Prison manuals do not have any provision for informing the prisoner or his family of the rejection of the mercy petition by the governor. But the court said that the rejection by the governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available.

Rejection by President: Many, but not all, prison manuals have a provision for informing the convict and his family of the rejection of a mercy petition by the President. But the court ruled that all states should forthwith inform the prisoner and the family of the rejection in writing. “We have seen that this information is always communicated orally, and never in writing. Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition.”

Copy: Death-row convicts have a right to receive a copy of the rejection of the mercy petition by the President and the governor.

Execution notice: A notice of 14 days has to be given to the prisoner and the family before execution. At present, some manuals do not mention such a notice period while others prescribe a window ranging from one day to 14 days. “It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution,” the court said.

The court explained the reasons for the notice period.

It allows the prisoner to prepare mentally for the execution, “to make his peace with God, prepare his will and settle other earthly affairs”.

It allows the prisoner to have “a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison that may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families”.

It is the obligation of the superintendent of a jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time, the court said.

Mental health: Regular mental health evaluation of death-row convicts. “We have seen that in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts, and appropriate medical care should be given to those in need.”

Health reports: After the mercy petition is rejected and the execution warrant is issued, the prison superintendent should satisfy himself on the basis of medical reports by government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. If the superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution and produce the prisoner before a medical board for a comprehensive evaluation and forward a report to the state government for further action.

Final meeting: A final meeting between a condemned prisoner and family as well as friends immediately prior to execution must be allowed. Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities.

Post-mortem reports: Obligatory, although none of the jail manuals provides for compulsory post-mortem. “We think in the light of the repeated arguments by the petitioners asserting that there is dearth of experienced hangmen in the country, the same must be made obligatory,” the apex court said.

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