The Telegraph
Wednesday , January 22 , 2014
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SC ends long wait for mercy for 15

New Delhi, Jan. 21: Fifteen death-row convicts today escaped the gallows after the Supreme Court, in a landmark judgment, commuted their punishment to life, citing delay of up to 12 years in deciding their mercy petitions.

The judgment opened a window of hope for three death-row prisoners in the Rajiv Gandhi assassination — Murugan, T. Suthendraraja alias Santhan and A.G. Perarivalan — and Khalistani terrorist Devinderpal Singh Bhullar.

In the 154-page order, a bench of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh also held that courts can examine the delay in dealing with mercy petitions even in terrorist-related offences.

This is significant as in the Devinderpal Singh Bhullar case, a two-judge bench had ruled last year that in terrorist-related offences, delay in dealing with mercy petitions cannot be a ground for commuting the sentence to a life term.

Bhullar now has a fresh option to seek commutation of his sentence. Another apex court bench is dealing with petitions filed by Rajiv Gandhi’s killers to commute their death penalty to a life term owing to the delay in deciding their mercy petitions.

The apex court also laid down a series of guidelines for the Centre and the states on dealing with mercy petitions. But it did not prescribe any time frame for their disposal, leaving it to the wisdom of the executive.

Justice Sathasivam, who wrote the judgment, said there should be a minimum of 14 days between the rejection of the petition and the execution. This would give the convict time to meet his family for the last time or seek legal help if he felt aggrieved at the delay in dealing with the mercy petition or was suffering from mental illness.

The court made it mandatory to do a post-mortem on an executed convict’s body in all future cases, so there is no scope for criticism that he was subjected to cruel methods. During the hearing of arguments, the People’s Union for Democratic Rights (PUDR) and some convicts had pleaded that there were no trained hangmen in the country.

The court left it to the discretion of jail superintendents to stop an execution even at the last moment, if a prisoner was found to be suffering from any serious mental or other illness

The apex court passed the judgment while hearing a batch of petitions filed by the convicts or their family members and the PUDR challenging the delay in deciding mercy petitions.

The prisoners who escaped the gallows include slain sandalwood smuggler Veerappan’s brother Gnanprakasam and his aides Bilavendran, Simon and Madiah.

In the case of two convicts who got a reprieve today, there was a delay of only two years. But the court commuted their sentence as they were suffering from mental illness, which had been aggravated by prolonged incarceration.

The court, however, made it clear that the judiciary cannot re-open the merits of the conviction, although any death-row convict can approach it in case of delay in dealing with the mercy petition.

“We sincerely hope and believe that the mercy petitions under Article 72/161 can be disposed of at a much faster pace than what is adopted now, if the due procedure prescribed by law is followed in verbatim,” the court said.

“Although no time frame can be set for the President for disposal of the mercy petition but we can certainly request the concerned ministry to follow its own rules rigorously which can reduce, to a large extent, the delay caused.

“There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. Each case requires consideration on its own facts.

“We are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases, including the offences under TADA.

“The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive,” the court ruled.

The bench said keeping a convict in suspense about his fate because his mercy petition was under consideration was a big agony for him. It led to adverse health conditions, and hence violated Article 21 (right to life and liberty) — a right which accrues “to every person till his/her last breath”.

“It creates adverse physical conditions and psychological stresses on the convict under sentence of death. Indisputably, this court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonising delay caused to the convict only on the basis of the gravity of the crime,” the court said. It added: “Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive.”