Ipsita Mishra
The Supreme Court, while deciding three recent cases, held that seven of its judgments awarding the death sentence were rendered per and contrary to the binding dictum of “rarest of rare” category propounded in the Constitution Bench judgment in Bachan Singh vs State of Punjab (1980) (2 SCC 684). The three recent cases were Santosh Kumar Bariyar vs State of Maharashtra (2009) (6 SCC 498), Dilip Tiwari vs State of Maharashtra (2010) (1 SCC 775), and Rajesh Kumar vs State (2011) (13 SCC 706). In this, they cited the landmark Bachan Singh vs State of Punjab, which laid down the “rarest of rare” doctrine.
Having understood the Bachan Singh judgment clearly, the Bariyar Bench had no compunction in exposing the flaws in the Ravji judgment. The Bench stated “We are not oblivious that Ravji case has been followed in at least six decisions of this court in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriam.”The Bariyar Bench held: “It is apparent that Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent” (paragraph 63).
Pratibha Patil ide told Frontline: “She saw to it that the government has applied its mind, and due deliberations have taken place on every pending petition.”It clearly suggests that she was dissatisfied with the quality of advice tendered by Chidambaram’s predecessors on the pending mercy petitions. As her aide explained that more clarity is expected on the merits of her and the Home Ministry’s handling of mercy petitions when the Supreme Court, which is currently hearing the pleas of the five convicts against the rejection of mercy petitions by her, gives its verdict. Meanwhile, there is enough reason to believe that the legal safeguards aimed at avoiding the miscarriage of capital punishment have failed to deliver, and public opinion in India can no longer ignore the global movement in favour of the abolition of the death penalty. In an landmark judgement, the Supreme Court inordinate delay in deciding on mercy plea of a death row convict is sufficient ground for commutation of death sentence to life.
Chief Justice P.Sathasivam said”….Mercy petitions were disposed of more expeditiously in former days than in the present times. Mostly, until 1980, the mercy petitions were decided in minimum of 15 days and in maximum of 10-11 months. Thereafter, from 1980 to 1988, the time taken in disposal of mercy petitions was gradually increased to an average of four years”.
The cases like Vatheeswaran and Triveniben who are lodged in a Karnataka jail since 2004, were decided which gave way for developing the jurisprudence of commuting the death sentence based on undue delay. The court said that the government cannot keep mercy pleas pending for years. The court said that if there is a procedural lapse in deciding on the mercy plea of a death row convict then it can be a ground for commuting death sentence to life.
Death row convicts should not be placed under solitary confinement. They should be provided all legal aid if he/she wishes to submit a mercy plea. The court also mandated respective state governments to place necessary material before the Governor while sending the mercy plea. Once the mercy plea is rejected, it should be conveyed in writing to the convict, the court said. Though 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. Jurist Soli Sorabjee termed Death penalty as “correct and humane.”
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