Death Sentence Commuted by Bombay High Court: Inordinate Delays In Execution Amount to Torture, Urgent Reforms in this Area Needed| OPINION

The Bombay High Court on July 29 commuted the death sentence of the convicts to imprisonment for life in the case of rape and murder of a Pune-based Wipro BPO employee in 2007. The judgment is another instance that demonstrates the burden of retaining the death penalty. It highlights the callousness with which the state executive administers it.In this case, the cab driver and his accomplice were convicted and sentenced to death in 2012 by the trial court. Their conviction and the death sentence was upheld by the High Court and then by the Supreme Court. The mercy petitions filed with the President and the Governor were also rejected. When a warrant of execution was issued, writ petitions were filed by the convicts in the Bombay High Court which led to the commutation.It is hoped that this case will, at least, bring some reform in the manner in which the death row prisoners are treated in the Yerwada Central Prison, Pune.Capital punishment no deterrent to crime: Javed AkhtarGrounds For Commutation: What Is ‘Inordinate Delay’?The Bombay High Court relied on the precedents clearly established by the Supreme Court in multiple cases. One of the grounds for the commutation was the delay in deciding the mercy petition and execution of the sentence. Having faced similar cases in the 1980s, a constitution bench of the Supreme Court in Triveniben vs State of Gujarat crystalised the law by crafting the remedy for commuting death sentences to imprisonment for life in cases involving “inordinate delay”.The delay had to be executive and not judicial — delay in deciding mercy petitions or procuring warrants for execution and not the time spent in courts. While the judgement did not specify how much delay would count as ‘inordinate’, a couple of cases, suggested a timeline of 3 months for the disposal of mercy petitions.However, delays continue to persist. The Death Penalty India Report, 2016 by the National Law University, Delhi found that death row prisoners — whose mercy petitions were rejected — had spent an average of 16 years and 9 months in custody.Torture Caused By DelayIn 2014, the Supreme Court, in a case involving fifteen death row prisoners, categorically held that “delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence.” Despite the reiteration of this ruling at several instances, the administration of death penalty remains torturous.The judgment of the Bombay High Court further pushes the law on delay by highlighting the time that was spent in courts after the prisoners were sentenced to death. While this is a relatively new factor in the Indian legal system, it has been accepted in the common law system by the UK Privy Council since 1993. In Earl Pratt vs The Attorney General for Jamaica, it was held that any delay of more than five years between sentencing and execution would amount to ‘inhuman punishment’.This development was also noted by the Law Commission in its 262nd report released in 2016. It recommended abolition of the death penalty for all crimes except terror offences. In this case, the prisoners spent more than seven years on death row after the sessions court had first sentenced them to death.Segregation & Solitary ConfinementThe torture inflicted due to the delay is exacerbated by the segregation and solitary confinement of the death row prisoners. This became another reason for the commutation in this case. Here, the law has been clearly laid down by the Supreme Court in Sunil Batra vs Delhi Administration,1978, where it held that the prisoners sentenced to death cannot be segregated until all the constitutional remedies have been exhausted. However, this direction is yet to be implemented in many prisons across the country.Prisoners on death row continue to be illegally segregated.Both — the Death Penalty India Report and the Law Commissions’s report — found that prisoners on death row continue to be illegally segregated. In this case, the authorities at Yerwada Central Prison sought to hide the segregation behind the cloak of security by referring to the ‘phansi yard’ as the ‘security yard’. However, as noted in the judgment, internal prison documents referred to it as the ‘phansi yard’, revealing the deceit.The judgment reaffirms the procedure that is to be followed before the issuance of execution warrants. It clearly held that an opportunity to be heard has to be given to a convict before a warrant of execution is issued. This was mentioned to avoid executions in an “arbitrary and secret manner”.Hindrance Caused By Bureaucratic WorkThe judgment also reveals the troubling bureaucratic layer of the government machinery in such cases. It mentions that the Governor of Maharashtra sought several documents to arrive at a decision on the mercy petition. These documents were provided piecemeal, resulting in a scenario where some documents including the judgment of the trial court were never seen by the Government of Maharashtra or the Governor.This is also a violation of the guidelines issued by the Supreme Court in Shatrughan Chauhan vs Union of India that require all relevant material to be placed before the authorities at the same time and not piecemeal.In response, the State Government even argued that providing the Governor with the trial court judgment was “not an essential requirement” even though it was specifically sought. This case clearly illustrates the reasons why the Law Commission concluded its 2016 report as: “The exercise of mercy powers under Article 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence.”Death Penalty In ‘Constitutionally Consistent’ MannerThe implications of this decision on other pending cases remains to be seen. While the newly crafted jurisprudence is still to face the test of the Supreme Court, death row prisoners facing execution will continue to cite delay and solitary confinement as strong grounds for commutation of sentences. It is hoped that this case will, at least, bring some reform in the manner in which the death row prisoners are treated in the Yerwada Central Prison, Pune.This judgment shows how — despite the decades old directions by the Supreme Court — prisoners sentenced to death continue to suffer long and traumatic periods on death row. It is time to question if our legal and political systems are even capable of administering the death penalty in a constitutionally consistent manner.(Himanshu Agarwal works with Project 39A at the National Law University, Delhi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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Topics: Capital Punishment Bombay High Court Death Penalty