Our politicians have had no interest in making other laws to govern humane treatment of convicts

 Posted On Friday, January 24, 2014 at 08:15:38 AM


The power to take away human life enjoins an
obligation to do it with grace 

It is a sudden blast of oxygen. The Supreme Court has passed a well-articulated and cogent order to save fifteen pathetic lives from the hangman’s noose. The methodically-documented record extracted in the judgement demonstrates the abject apathy of government towards convicts on death row. Going by past experience, large sections of the media may air populist, shrill and typically- uninformed voices of critique.

Acts of mercy toward death convicts are always controversial. When former President Pratibha Patil granted pardon to some death row convicts, sections of the media derided her with headlines like “President Pratibha Patil, the Merciful”, “Who Has She Pardoned?”, “President Pratibha Patil goes on Mercy Overdrive”, and the like. Therefore, the progressive ruling of the Supreme Court that gives India room to stake claims of being sensitive and humane deserves robust defence.

First, a line on the scope of the relevant law: Articles 72 and 161 of the Indian Constitution empower the President of India and the Governors of Indian States to pardon from punishment, or to suspend, remit or commute any death sentence. Indeed, this power is an extraordinary executive power vested in the head of state. However, successive governments in our young Republic have resisted introduction of transparent clarity on how such discretion is to be exercised.

Governments have historically convinced courts that no guidelines should be laid down, that no timeframe should be set for decisions on mercy petitions, and, that absolute arbitrary and whimsical exercise of such discretion is perfectly legitimate. Disagreeing, the court has pointed out that the right question to ask is whether “supervening circumstances” have come into being. These include delay in processing the mercy petition, violation of procedure for handling the petition, and insanity of the convict.

The original conviction would remain unchanged but courts may reduce the penalty to a lower one based on merits of the supervening circumstances. For sections of society opposed to compassion towards any convict on death row, no supervening circumstances can matter. The easiest argument to adopt against any reduction in penalty is to recount the gravity of the crimes for which the death penalty was awarded.

Nothing can be more fallacious. By law, death can only be handed for grave crimes. Therefore, necessarily, every petition for mercy from death would be one involving a grave crime. The court has rightly observed that it is no argument to point to the gravity of the offence as a ground to reject a mercy petition. In a nation with over-abundance of human lives, the value of human life is naturally low.

The record of state apathy towards the lives saved by the court is heart-rending. In violation of the law and past court rulings, many death-row convicts were segregated and held in solitary confinement without any human company despite appeals or mercy petitions being pending.

The court has urged the jail system to read and honour the law. The power to grant mercy under articles 72 and 161 is to be exercised under the aid and advice of the government elected to office by the people — the President is only the designated head of state. Most of the convicts covered by the order have been in custody for a decade or more. Their mercy petitions have moved back and forth between the Home Ministry and the Rashtrapati Bhavan.

Often, the files gave the President inadequate information. In some cases, jailors sent repeated reminders without avail. In some files, the Home Ministry parroted a recommendation of rejection without supplying all the information the President sought. In no case did the Home Ministry explain the inordinate delay. Meanwhile, some convicts were driven officially insane — rendering them legally unfit for death penalty and physically unfit for life.

Except for considering laws to enable convicts to contest elections, our politicians have had no interest in making other laws to govern humane treatment of convicts — deathrow convicts are a meaningless component of the electorate. The Supreme Court has reiterated that until the point at which the noose snaps life out of the convict, the right to life guaranteed under the Constitution would be validly available.

Since India is a signatory to international conventions that outlaw cruelty and degrading treatment of convicts, the courts would treat the conventions as if they were local law. The court has also laid down guidelines on how to handle mercy petitions in future. The right of human beings to legitimately take away another human’s life enjoins an obligation to do so gracefully. The Supreme Court has done well to ring a reminder.


Read more — http://www.mumbaimirror.com/mumbai/others/MU-forms-committee-to-address-grievances-of-students-teachers/articleshow/29265314.cms

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