noose views: A recent protest against the rejection of the clemency petition of Perarivalan, Murugan and Santhan

The short stay on the execution of death row convicts Perarivalan, Santhan and Murugan who were involved in the assassination of Rajiv Gandhi in 1991 has become an occasion to revisit the old debate on whether or not capital punishment should be outlawed in India. But one pertinent question that must also be asked here is — given that death sentences continue to be awarded in our country, why does it take so long to execute them? Some legal experts believe that if the system cannot function without such delays, it would only be just and humane to commute the punishment to life imprisonment.

Take the case of Perarivalan, Santhan and Murugan. After the Supreme Court upheld their death penalties in 1999, their plea for clemency was submitted to the President in 2000. It was only last month — that is, 11 years after their clemency plea was submitted — that the President finally rejected it. Lawyers in the case, including senior counsel Ram Jethmalani who’s appearing for Murugan, have argued that the 11-year delay in carrying out the death penalty was itself a violation of the convicts’ fundamental rights.

There are several other instances of inordinate delays on the part of the authorities in meting out capital punishment. Afzal Guru, pronounced guilty of conspiracy in the December 2001 attack on Parliament, was sentenced to death by the Supreme Court in 2004. The sentence was due to be carried out on October 20, 2006. But the execution was stayed after his wife filed a mercy petition. Early last month, the Indian home ministry recommended that the President reject his petition. The matter is pending the President’s decision.

Then there’s Devinder Pal Singh Bhullar, involved in the blast outside the Youth Congress office in Delhi in 1993 that killed nine people. Bhullar was sentenced to death in 2001 and his mercy petition was rejected last May. This week the Supreme Court allowed him to file an amended application for reducing his sentence to life imprisonment. And last but not least, there is death row convict Ajmal Kasab, the man who gunned down several people during the 26/11 terrorist attack on Mumbai, whose trial grinds on.

Death row convicts in high profile political crime cases are not the only ones caught in a tortuous legal process. The mercy petition of Dhananjay Chatterjee, convicted of raping and brutalising a 14-year-old girl in Calcutta, was first rejected in 1994 by the President. After numerous petitions and counter-petitions at the high court and the apex court, Dhananjay was finally hanged in 2004 when his petition was again rejected by the then President A.P.J. Abdul Kalam.

There are provisions built into the Indian Penal Code and the Criminal Procedure Code whereby higher courts are empowered to turn death sentences into a lesser punishment like life imprisonment. Also, under Articles 72 and 161, the President of India and Governors have the power to grant pardon or commute death sentences.

Legal experts contend that the criminal justice system has to follow certain standard procedures. “In law, culpability is not only about the act or deed, but also about the intent,” says Amita Dhanda, professor, Nalsar University of Law, Hyderabad. “Hypothetically, if Ajmal Kasab can demonstrate that he did what he did because of dire penury and that he had no choice but to give in to indoctrination to get money to feed his family, he is entitled to a hearing. As in all legal battles, death row cases too take time.”

But leaving aside the lengthy trial process, what explains the unusually long hiatus between the apex court upholding a death sentence and the final execution of the penalty?

“Blame it on the ineffectual legal system first,” says Madhu Kishwar, activist and editor, Manushi. “And then there are vested interests from the political sphere at play which essentially stall efforts to execute sentences.”

Over the years, Supreme Court judgments seem to have grappled with the issue of delay in carrying out death sentences.

In a 1983 case, the apex court held that a delay of two years for execution was permissible, beyond which the sentence ought to be converted to life. Again, in a 1989 ruling, the Supreme Court, acknowledging the suffering endured in the long wait for execution, said: “When mercy petitions under Article 72 or 161 are received by the authorities concerned…, it is expected that these petitions shall be disposed of expeditiously. Undue long delay in execution of the sentence of death will entitle the condemned person to approach this court under Article 32 (right to approach the Supreme Court)…” to look into this.

To the lay citizen who wants to see some visible evidence of justice being done in case of a horrendous crime, the delays in executing a death sentence seem inexplicable. But legal experts say that it is not so easy to lay down iron clad rules to prevent them. “People who are administering criminal justice have to be balanced. In the conduct of such affairs, they cannot show vendetta,” says Dhanda.

But she also feels that it’s unfair to not act swiftly while dispensing justice. “The country is not abolishing capital punishment, and on top of that there is this delay in carrying out the sentences. So basically, they are doing nothing — neither are you creating a culture of compassion nor are you deterring anyone,” she says.

Agrees retired Justice K.T. Thomas, who presided over the bench that handed the death penalty to the accused in the Rajiv Gandhi assassination: “The longer the wait for the execution of the death sentence, the greater should be the chance of commutation. You cannot put a person perpetually on tenterhooks. This should be ground enough to commute his sentence.”

Dhanda refers to some countries like the UK where life-without-parole sentences are used. “Here, a life sentence means a sentence for life — that is, they won’t be allowed to come out of jail till they die,” she says. “In most capital punishment cases, the Indian government’s attitude is actually similar, but they won’t make it official. This is abominable — if one is sentenced for a life in jail, one will at least know that he or she will be alive in jail!”

In some other countries where capital punishment is in force, the execution of the sentence usually takes much less time. For instance, Timothy McVeigh, who was found guilty of the murder of 168 people in the 1995 bombing of a government building in Oklahoma City, US, was sentenced to death in 1997 and executed in 2001.

Of course, most human rights activists, who in any case are opposed to capital punishment, object to the very demand for faster execution of the death penalty. “Why do people want death row convicts to be executed faster? Why do the media and the public at large always bay for blood,” asks human rights lawyer Colin Gonsalves, who’s appearing for Perarivalan. “Those who crave to see convicts hanged should spend some time in prison and try to understand what agony people on the death row go through while waiting for execution.”

The point some are making is that the delays in dispensing with a mercy petition just makes the agony worse, not to mention the fact that in the process, justice is also not seen to be done.