The Supreme Court defends the right to life and liberty of death-row convicts until the hanging and commutes the death sentences of 15 convicts to life imprisonment. By V. VENKATESAN

ON January 21, the Supreme Court took a huge step forward in advancing the rights of death-row prisoners who had so far suffered discrimination and injustice at the hands of the executive and the judiciary. In Shatrughan Chauhan vs Union of India, a three-judge Bench comprising the Chief Justice of India P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh corrected some of the inconsistencies that marked the death penalty jurisprudence and laid down guidelines to ensure that mercy petitions of death-row convicts are fairly considered by the executive.

The power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is not to be exercised as a matter of grace or mercy but as a constitutional duty of great significance. And there is a reasonable expectation that the executive would exercise this power with great care and circumspection keeping in view the larger public interest.

It is a settled legal position that this power per se is above judicial review but the manner of its exercise can be legally challenged. In other words, the courts retain the limited power of judicial review to ensure that the constitutional authorities consider all the relevant materials before arriving at a conclusion.

In the case before the court, it was alleged that the executive decided the mercy petitions of 15 death-row convicts without considering the “supervening events” that are crucial for deciding the same. “Supervening events” are those that occur between the confirmation of the death sentence by the Supreme Court and the hanging of the convict. The legal basis for taking supervening circumstances into account, according to the court, is that Article 21 (which guarantees right to life and personal liberty) inheres a right in every prisoner until his last breath and the court will protect that right even if the noose is being tied around the condemned prisoner’s neck.

Inordinate delay

The court decided that inordinate delay in deciding a mercy petition is a valid supervening factor, which can render the execution of a convict unconstitutional. The court reached this conclusion by correctly interpreting the Supreme Court’s five-judge Constitution Bench’s ruling in Smt. Triveniben vs State of Gujarat (1989). It held that it could not excuse the agonising delay caused to the convict only on the basis of the gravity of the crime.

The court rejected the government’s demand that even if the delay caused seems to be undue, the matter must be referred back to the executive and a decision must not be taken by the judiciary. The court reasoned that it was the custodian and enforcer of fundamental rights and the final interpreter of the Constitution. Further, it said, the court was best equipped to adjudicate the content of those rights and their requirements in a particular situation. Accepting the government’s contention would mean that the court cannot give relief to an individual for the violation of Article 21.

The court, however, added that the nature of delay, that is, whether it is undue or unreasonable, must be appreciated on the basis of the facts of individual cases and that no exhaustive guidelines could be framed in this regard.

One of the convicted prisoners is Devender Pal Singh Bhullar, whose challenge to the rejection of his mercy petition by the President was dismissed by a two-judge Bench of the Supreme Court last year. The Bench ruled that delay could not be claimed as a supervening factor eligible for commutation of the death sentence if the accused was convicted for an offence of terrorism. As Bhullar was convicted for a terrorist offence, it was held that he was not eligible for commutation on the grounds of delay.

The three-judge Bench overruled this ruling of the two-judge Bench and gave Bhullar relief from the death sentence. The three-judge Bench’s reasoning is that all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind and that the law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence.

The court held that there was no good reason to disqualify all TADA (Terrorist and Disruptive Activities (Prevention) Act) cases as a class from relief on account of delay in execution of the death sentence, and that each case required consideration on its own facts. On January 31, the Supreme Court agreed to hear the curative petition of Bhullar’s wife, Navneet Kaur, in the light of its verdict in Shatrughan Chauhan, and stayed his execution.


Insanity of the convict, after the imposition of the death sentence, is the second supervening factor which the court accepted as a ground for granting relief from executing the sentence. Counsel for two of the convicts prayed for relief on this ground. The court relied on the International Covenant on Civil and Political Rights, which India has ratified, Clause 3(e) of the Resolution 2000/65 dated April 27, 2000, of the United Nations Commission on Human Rights, and Clause 89 of the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions published in 1996 by the UNCHR in order to hold that insanity of the convict is a relevant supervening factor. In Paragraph 79, after citing the jail manuals of States, the court held that after it was established that the death convict was insane and it was duly certified by a competent doctor, Article 21 undoubtedly protected the person and such person could not be executed without further clarification from the competent authority about his mental problems.

Convicts who got relief

Convicts 1 and 2: Suresh (60) and Ramji (45): Both were sentenced to death for the murder of five family members of Suresh’s brother—two adults and three children—over a property dispute. The court found that there was a delay of 12 years in disposing of their mercy petitions and that the Ministry of Home Affairs (MHA) had made no mention of this fact in the summary prepared for the President. In the absence of proper, plausible and acceptable reasons for the delay, the court found this a relevant supervening factor.

Convicts 3 to 6: Bilavendran (55) Simon (50), Gnanaprakasam (60) and Madiah (64), brigand Veerappan’s associates: The court held that the delay of nine years in disposing of their mercy petitions was unreasonable and that no proper explanation had been offered for the delay. Besides, the court took note of the convicts’ age, their being in custody for nearly 20 years, and the fact that the summary prepared by the MHA for the President made no mention of the delay. The court also considered the fact the Supreme Court suo motu had enhanced the life sentence imposed on the convicts by the High Court, which was very unusual in the sentencing jurisprudence. Here again, the court rejected the implicit suggestion that TADA cases deserved no leniency in sentencing.

Convict 7: Praveen Kumar (55): He was convicted for the murder of four members of a family. The court found that there was no explanation for the delay of nine and a half years in disposing of his mercy petition and that the MHA had failed to mention the delay in its summary prepared for the President.

Convict 8: Gurmeet Singh (56): He was sentenced to death for killing 13 members of his family in 1986. The court found the delay of seven years and eight months in disposing of his mercy petition undue and unexplained. The court discovered from the MHA files that the Home Minister had rejected the recommendation of the officials in the Ministry to commute his death sentence. Also, the MHA had not mentioned the delay in its summary prepared for the President.

Convicts 9 and 10: Sonia (30) and Sanjeev Kumar (38): The MHA had reiterated its recommendation to reject their mercy petitions to the President for the sixth time after the President returned their file for reconsideration on various grounds five times. The court found that the delay of six years and five months in disposing of their mercy petitions was unexplained and undue. It also considered the fact that Sonia had attempted suicide during the delay.

Convict 11: Sundar Singh: The court was satisfied with the observations of three psychiatrists, attached to the State Mental Health Institute, Dehradun, that he was suffering from schizophrenia. The MHA had concealed this fact in the summary prepared for the President. The court directed the jail authorities to provide all medical facilities to Sundar Singh if his condition required further treatment.

Convict 12: Jafar Ali (48): He was sentenced to death for the murder of his wife and five daughters. The court found the delay of nine years and two months in disposing of his mercy petition unexplained and undue. The court also found that the MHA, apart from concealing this delay from the President, had also kept under wraps the fact that the Supreme Court had dismissed the convict’s special leave petition (SLP) against the imposition of the death sentence by the High Court in limine. The court, in a self-critical moment, added that it was desirable to examine the materials on record first hand in view of the time-honoured practice of the Supreme Court and to arrive at an independent conclusion on all issues of facts and law, unbound by the findings of the trial court and the High Court.

Convict 13: Maganlal Barela (40): He was sentenced to death for the murder of his five daughters. Although the delay in disposing of his mercy petition was just one year, the court found, from the note prepared by the Prison Superintendent who had recommended commutation of his death sentence to life imprisonment, that he was suffering from mental illness. The MHA had ignored this note. Also, the MHA had not informed the President the fact that the Supreme Court had dismissed his SLP in limine.

Convicts 14 and 15: Shivu (31) and Jadeswamy (25): The court found the delay of six years in disposing of their mercy petitions undue and unexplained and the fact that the MHA had failed to mention this delay in its summary prepared for the President a relevant factor in commuting his death sentence to life imprisonment.


The Supreme Court laid down as many as 12 guidelines to safeguard the interests of death-row convicts. These are as follows:

1. Solitary or single-cell confinement prior to the rejection of mercy petition by the President is unconstitutional.

2. Superintendent of jails must intimate the rejection of mercy petitions to the nearest legal aid centre, apart from intimating the convicts, so that they get the requisite legal aid to challenge the rejection on the grounds of supervening events, if any.

3. Once the Governor rejects a mercy petition, the Central government must fix a time limit for the State government authorities to forward all relevant documents about the death-row convict.

4. A convict is entitled to be informed in writing by the Governor of the decision to reject the mercy petition. This decision should forthwith be communicated to the convict and his family in writing or through some other mode of communication available.

5. All States should inform the prisoner and their family members of the rejection of the mercy petition by the President forthwith in writing.

6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.

7. A minimum of 14 days must be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons:

(a) to allow the prisoner to prepare himself mentally for execution, prepare his will, and settle other earthly affairs; and

(b) to allow the prisoner to have a last and final meeting with his family members.

The superintendent of the jail has the obligation to inform the family members of the convict about the rejection of mercy petition in time.

8. Regular mental health evaluation of all death-row convicts and appropriate medical care to be given to those in need.

9. On the basis of medical reports by government doctors and psychiatrists the prison superintendent should satisfy himself that the prisoner is in a fit physical and mental condition to be executed. If the superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, produce the prisoner before a medical board, and forward a report to the State government.

10. Copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts.

11. Prison authorities must facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.

12. Post-mortem on death convicts after the execution is obligatory. The court found this necessary to reveal whether the prisoner died as a result of the dislocation of the cervical vertebrate or by strangulation, which results on account of too long a drop. Post-mortem, the court held, would ensure just, fair and reasonable procedure of execution of the death sentence.

The Supreme Court’s judgment has raised hopes that in future, execution of the death sentence may become near impossible, even though imposition of the death sentence itself is constitutionally permissible.

This is because the court in this case has not fully exhausted the supervening factors which may arise after the submission of a mercy petition and which could make a prisoner eligible for commutation of the death sentence by the executive and the judiciary.

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