Second, terrorists should not be denied the benefit of commutation by drawing a distinction between them and those sentenced to death for other crimes such as gruesome murder and rape. The logic: Every death sentence is based on the principle of “rarest of rare cases” laid down in the Bachan Singh case and as such terrorists can’t be treated as a special category that doesn’t deserve leniency on the ground of long incarceration arising from mercy plea delays.

Third, no death-row convict should be thrown into the tiny cell meant for solitary confinement immediately after the trial court verdict. This is allowed only after the rejection of the mercy petition by the constitutional authority.

The three-member Bench headed by Chief Justice P Sathasivam, which delivered the verdict on January 21, has also introduced several new checks and balances in the process for executing the death sentence: These are: Every convict should be given a chance to seek mercy. Execution will take place only after 14 days from the day the convict and his family are intimated in writing about the rejection of his mercy plea. A prisoner can be sent to the gallows only after facilitating his meeting with relatives and friends. A mandatory health check will be done before the execution and the noose can be tightened only after medical clearance, covering both physical and mental aspects.

The Supreme Court has ruled mercy petition delay subjects a convict to torture, whereas the verdict is to hang him promptly.

Going further, the court mandated post-mortem examination of the bodies of every person hanged to ensure that the execution was conducted with decency and decorum without involving degradation or brutality of any kind. Hanging should only result in dislocation of the cervical vertebrae, which causes least pain before death, not in painful strangulation, it explained.

The Tribune talked to a number of legal experts to elicit their views on the verdict. This showed that there is a general consensus on the reduction of sentence, from death to life term, on account of mercy plea delays. But their sentiments vary sharply on some other aspects, such as the need for doing away with the provision for capital punishment.

Almost all experts ruled out the possibility of the verdict turning out to be a de-facto abolition of the extreme penalty, often viewed as a barbaric act by rights activists on the part of the state. Reducing the sentence on account of delays in processing the mercy plea would rather expedite the disposal and minimise the agony of death-row convicts, according to constitutional experts Ashok Desai and PP Rao and senior advocates Raju Ramachandran, MN Krishnamani, Colin Gonsalves, Mahabir Singh and JS Attri.

Death every day

“Condemned prisoners experience death every day, from the date of the judgment till their execution.  The right to life guaranteed under Article 21 means life with dignity. Everyone likes to die with dignity without going through agony on account of delay in the execution of the death sentence,” Rao said.

The Supreme Court ruling was  most welcome as it upheld the spirit of human rights and respected the  sentiments of such prisoners who were also entitled to fundamental rights, he noted.

Acknowledging the court’s inability to set a timeline to the constitutional authority for the disposal of mercy pleas, Mahabir Singh said the court could have indicated an outer limit. Now, there was scope for officials to manipulate the delay at the instance of influential convicts in order to secure commutation.

Ramachandran did not have any such apprehensions. The ruling would rather dissuade the executive from sitting on mercy petitions shirking their responsibility. There was little scope that the verdict would lead to a situation of no-hangings and virtual abolition of death as a punishment.

Echoing these sentiments, Krishnamani said the Supreme Court had given similar rulings earlier on delays but executions had still continued. From now on, the judiciary would just have to see whether the long delays in the implementation of the death sentence were explained with adequate reasons, he pointed out.

Ways of execution

Welcoming the stipulation for a not less than 14-day notice, Ramachandran said this would ensure that at least a limited judicial scrutiny was available to death-row prisoners. Citing the dearth of experienced hangmen and the necessity of the post-execution post-mortem, which might accentuate the availability problem, he said it was time to explore other humane ways of execution like electric chair and lethal injections.

Asked about his view on the death penalty provision, Ramachandran said he had always been against it as “too much is dependent on judicial discretion and the possibility of judicial error, which leads to an irreversible situation.”

Expressing a similar view, Gonsalves said the death sentence had become impractical, outmoded and obsolete, besides giving rise to great injustice at a time when all democracies were moving in the direction of more humane sentencing.

When pointed out that some of the states in the US had retained the death sentence provision, he launched a scathing attack on that country: “The US is the most barbaric nation when it comes to treatment of prisoners. Historically, many American states and their Governors have been bloodthirsty. India should not look at the worst country with the worst record of human rights. Rather, we should look at Europe, where all countries have done away with the capital punishment. Even developing countries such as Turkey don’t have this provision any longer.”

Incidentally, Gonsalves had taken up the cause of most of the 15 convicts with the Supreme Court, which enabled them to escape the noose.

Attri said the verdict would force the government either to expedite the mercy pleas or devise an altogether new mechanism to minimise delays. He, however, differed with Gonsolves, maintaining that the death sentence should remain on the statute in order to render justice to the aggrieved family in particular and society in general.

Krishnamani was also in favour of retaining death penalty as a means of deterrence, particularly for potential rapists. As a further deterrent step, there should be a legal provision for castrating rape convicts, chemically or surgically, so that they were not in a position to repeat the crime. He,  however, agreed that the execution provision could not be a deterrent for terrorists who were ready to be  human bombs.

The senior advocate was in full agreement with the Supreme Court ruling that terrorists could not be treated as a separate class and denied commutation. He, however, suggested that they should not be given any remissions in their life term, which were generally granted to prisoners on occasions such as Independence and Republic days and birth anniversaries of Gandhi and Nehru. Terrorists and serial offenders should be kept in prison till death to avoid any risk to society.

Deterrence value

Rao was also of the view that the capital sentence still had some deterrence value in many cases, barring those involving terrorists and suicide bombers. But even for those who were ready to die for the sake of killing a large number of people, the period from the pronouncement of the death penalty till the execution was marked by a great deal of suffering.

“Having regard to the prevailing conditions in society, I am in favour of retaining the death penalty. According to me, time is not ripe for its abolition. However, it should be awarded very sparingly, only in cases where reforming the convict is impossible and the only way to save society from him is by handing out the punishment and enforcing it quickly,” Rao said.

On post-mortem, he pointed out that the law did not permit strangulation of the convict. If the mechanism for hanging failed, the mandate of the law to execute the death sentence through the least painful method was negated. However, there was nothing to fear or feel concerned about regarding the court’s directive for post-mortem as this would only make the jail authorities alert and ensure that the hanging mechanism was functional and  effective. He was also against giving remissions in the life term awarded to terrorists after commuting their  death penalty.

Alternatively, if the court felt that any particular terrorist was capable of organising terror even while serving the jail term and therefore needed to be eliminated, it may not commute the death sentence, he points out.

Humane treatment

Almost everyone welcomed the safety checks introduced by the Supreme Court to ensure the humane treatment of death-row convicts and protect their fundamental rights guaranteed under the Constitution.

The new mandatory requirements of intimating in writing the prisoner and his relatives of the rejection of his mercy plea, giving him a chance to appeal against the rejection on account of delays, facilitating a last meeting with friends and relatives before the execution would also go a long way in furthering the cause of human rights and preventing hangings shrouded in secrecy, as happened in the case of Afzal Guru, they felt.

The Supreme Court had given two reasons for asking the authorities to give a 14-day notice. One, it allowed the prisoner to prepare himself mentally for execution and write his will and settle other earthly affairs, besides making peace with God. Two, it allowed his family members to make arrangements to travel to the prison, which might be located at a distant place, to meet the prisoner the one last time.

The directive to do away with the practice of solitary confinement before the mercy plea rejection was also well received by experts and activists.

The positive sentiments and insights of those within the legal system on the development may have promised a better future to those staring at the gallows. Also, they may take heart from the fact that 15 prisoners — including slain sandalwood smuggler Veerappan’s four associates convicted of killing 22 policemen — have escaped execution and got a fresh lease of life following the January 21 verdict.

This may also give rise to fresh demands for life from Devender Pal Singh Bhullar, involved in the 2001 bomb attack on Youth Congress chief M.S. Bitta, and the assassins of former Prime Minister Rajiv Gandhi. They could very well get relief too.

Nevertheless, we can’t lose sight of the fact that these steps are meant only to deal with post-conviction situations. The official and legal processes, from the commission of the crime till the conviction and the appeal stage, remain by and large the same with the number of pending cases mounting by the day.

Not just this. The proposed police reforms, which would go a long way in preventing crimes in the first place, have remained only on paper for years now despite the prodding from the apex court time and again. Taking some urgent steps on this front will contribute a great deal to ensuring a better tomorrow for all of us.

Code of death

• Everyone gets chance to seek mercy.
• At least 14-day notice between rejection of mercy plea and execution.
• Meeting with relatives and friends must before execution.
• Health check mandatory before execution, both physical and mental.

Dignity of death

Everyone likes to die with dignity without going through agony on account of delay in the execution of the death sentence.

— PP Rao, Constitutional expert

Time limit

The court could have indicated an outer limit for the disposal of mercy pleas. Now, there is scope for officials to manipulate the delay at the instance of influential convicts in order to secure commutation.

— Mahabir Singh, senior advocate

Mercy mechanism

The verdict will force the government either to expedite the mercy pleas or devise an altogether new mechanism to minimise delays.

— JS Attri, senior advocate

Pushing the executive

The ruling would dissuade the executive from sitting on mercy petitions, shirking their responsibility.

— Raju Ramachandran, senior advocate

Death obsolete

The death sentence has become impractical, outmoded and obsolete, besides giving rise to great injustice at a time when all democracies are moving in the direction of more humane sentencing.

— Colin Gonsalves, senior advocate

Mercy for terrorists

I agree with the Supreme Court ruling that terrorists could not be treated as a separate class and denied commutation. However, they should not be given any remissions in their life term.

— MN Krishnamani, senior advocate