by Aparna Chandra.The recent spate of executions and denial of clemency petitions has brought the issue of death penalty to the forefront of legal and political discourse in India. Now that the President has started rejecting clemency petitions after a long hiatus, one concern that has surfaced is whether an inordinate delay in the execution of a death sentence should itself be a ground for commuting the sentence. The controlling precedent on this point is Trivenben v. State of Gujarat which held that after the final appeal has been heard, if there is an inordinate delay in executing the death sentence, and such delay is attributable to executive sluggishness, then delay becomes a factor in determining whether the death penalty should be commuted or not..Two sets of cases, one pending, and one recently decided, have required the Supreme Court to revisit the issue of the delays in execution. In Bhullar, decided by the Supreme Court on April 12, 2013, the Court held that in terror related cases delay in deciding clemency petitions will not be a ground for commutation of death sentences. In this note I argue that the Court’s judgment is legally and constitutionally indefensible..I. The Case : “Proof beyond reasonable doubt is a guideline, not a fetish”.Bhullar was convicted and sentenced to death by a TADA Court for various offences under TADA and the IPC. The conviction was based solely on his own, non-corroborated, and retracted confessional statement made to a police officer. On appeal, by a 2:1 split verdict, the Supreme Court upheld the conviction and the sentence. The dissenting judge acquitted Bhullar on the ground of lack of evidence, and infirmities and inconsistencies in the testimonies of the prosecution witnesses. However, the majority refused to give Bhullar the benefit of the doubt in face of the sparse evidence, stating instead that, “[o]ne wonders whether in the meticulous hypersensitivity to eliminate a rare innocent form being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.”.The Supreme Court’s decision was handed down in March 2002. A review petition was dismissed in December 2002. In January 2003, Bhullar made an application for clemency before the President. A curative petition filed by Bhullar before the Supreme Court was dismissed in March 2003. The Cabinet finally recommended the rejection of the clemency petition in July, 2005, that is, after a period of two years..The Presidential Secretariat sat on the petition till April, 2011. As per the Supreme Court, “[i]t is not borne out from the record as to what happened for the next five years and nine months, but this much is evident that no decision was taken by the President.” In April, 2011, the Ministry of Home Affairs recalled the file, scrutinized it again, and in May, 2011 again recommended against granting clemency to Bhullar. Finally in June, 2011, that is eight and a half years after the clemency petition was filed, Bhullar was informed that his petition had been rejected..In the present case, Bhullar filed a writ before the Supreme Court for quashing the rejection of the petition. The writ did not seek quashing on the merits of the decision, but on the ground that the delay of eight years in deciding his application amounted to cruel, inhuman and degrading treatment and that the prolonged delay in deciding the clemency petition should itself be a ground for commuting his sentence..II. Delay and the Death Row Phenomenon.Why should inordinate delay be a ground for commuting the death sentence? Generally two arguments are presented in support. One, an inordinate delay amounts to cruel, inhuman and degrading treatment because of the prolonged mental torture, agony, and suffering that a person under penalty of death has to go through. Second, the inordinate delay amounts to a second punishment altogether. Let us look at each of these reasons..1. The “Dehumanizing” Effect: One argument for commuting a death sentence on grounds of inordinate delay is that the convict has to suffer immense mental trauma from being under a sentence of death for such a long time. As the Court had held in a earlier (and subsequently overruled) case, “the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law.” As the controlling precedent on the matter, Triveniben, recognizes, “a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture…..[N]obody could succeed in giving him peace of mind…. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed.”.Commonly referred to as the Death Row Phenomenon, the mental health impact of a prolonged delay in execution has been documented the world over. The U.S., which is notorious for the length of time a convict spends on death row, has had extradition requests to that country denied, by the European Court of Human Rights on the ground that a conviction in the US would expose the person sought to be extradited to cruel, inhuman and degrading treatment. Similarly, the United Nations Human Rights Committee, the Privy Council, as well as a host of other foreign courts have held that prolonged incarceration on death row amounts to cruel, inhuman and degrading treatment. Ironically some of these decisions cite the Indian Supreme Court’s dicta in the now overruled Vaitheeswaran and Triveniben, as persuasive authority for their holding..In the present case, Bhullar’s lawyers produced documents and medical certificates to substantiate the claim that Bhullar had suffered mentally and physically as a result of the inordinate delay in execution. The Supreme Court recognized that these documents did so indicate, but went on to hold that “the same cannot be relied upon for recording a finding that the petitioner’s mental health has deteriorated to such an extent that the sentence awarded to him cannot be executed.” The Court did not elaborate on this point, so it is unclear why exactly the Court refused to rely upon these documents..2. The Double Punishment claim: A second, somewhat distinct but related claim is that a prolonged delay in execution amounts to double punishment for the same crime, first by imprisoning the accused and then by executing him. In Triveniben the Court rejected the argument that a long period of incarceration followed by the death sentence amounts to being punished twice for the same offence. The Court reasoned that the purpose of the jail custody for a prisoner awaiting execution of the death sentence was not punitive. Therefore, the long incarceration would not amount to a second punishment. This reasoning is problematic. Regardless of the “purpose” of the custody, such a person is kept in jail for a prolonged period. In all material sense his liberty is as deprived as that of a person sentenced to serve out a specific number of years in jail as punishment. Therefore, the argument that the jail custody is not meant to be punitive and that therefore it cannot be understood as a second punishment is patently unreasonable..A related line of thought is that the mental agony caused by the prolonged incarceration on Death Row is the second punishment. This seems to be the argument advanced by Bhullar in the present case. Since the Court refused to consider Bhullar’s mental trauma as a result of the delay to be a ground for commutation, the Court did not accept the related double punishment argument as well..III. The Court’s Reasons: “The Bogey of Human Rights” .What did the Court hold and why? The Court held that the delay of eight years in deciding Bhullar’s clemency petition was not reason enough to commute this death sentence. Therefore, it refused to quash the President’s rejection of the clemency petition..The Court’s reasoning – or what passes for it- is summed up in this paragraph, and merits quotation in full:.“We are also of the view that the rule enunciated in Sher Singh’s case, Triveniben’s case and some other judgments that long delay may be one of the grounds for commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes. Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. The seriousness of the crimes committed by the terrorists can be gauged from the fact that many hundred innocent civilians and men in uniform have lost their lives. At times, their objective is to annihilate their rivals including the political opponents. They use bullets, bombs and other weapons of mass killing for achieving their perverted political and other goals or wage war against the State. While doing so, they do not show any respect for human lives. Before killing the victims, they do not think even for a second about the parents, wives, children and other near and dear ones of the victims. The families of those killed suffer the agony for their entire life, apart from financial and other losses. It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death. Many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights.” (my emphasis).Therefore, in sum, delay in execution does not amount to cruel, inhuman and degrading treatment because Bhullar was convicted of a terrorist offence! At one further level of abstraction, a person loses her right to procedural due process when convicted of a terrorist offence..This decision is problematic on various counts. First, the categorical decision of the Court that delay cannot be a ground for commutation of a death sentence in terrorism cases flies in the face of the Constitution bench decision in Triveniben. In that case, the Court had held that delay can be a ground for commutation but that in each case, the Court has to determine whether the sentence ought to be commuted on the grounds of delay, keeping in mind “[t]he nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated.” Therefore, the Court in Triveniben required a case-by-case determination of whether delay ought to be a ground for commutation. Bhullar, a two-judge bench decision, has held that delay is not a ground for commutation in all terrorist cases. This categorical exclusion of terrorist cases is against the Triveniben holding..Relatedly, it is not clear, and the Court does not specify why terror cases are materially different from other cases in the context of delay in the execution of a death sentence. A death sentence is supposed to be awarded only in the rarest of rare cases. By the Court’s own decisions, any case which merits the death sentence is one where the crime is heinous and the convict is beyond reform. In what material way is a terror case different from other “rarest of rare” cases? The Court never explains..Second, and more fundamentally, both Bhullar and Triveniben confuse two distinct issues: the nature of the crime on the one hand, and the procedural due process rights of the convict, on the other. A convict does not waive her procedural due process rights by committing a crime, even a dastardly one. Rather, these rights obligate the state to follow a just, fair, reasonable procedure in dealing with any accused or convict at all stages of the trial, appellate, clemency and incarceration phases. As the Court itself recognized in Sher Singh v. State of Punjab, and reiterated in Triveniben, “Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable.” Therefore, the Court in Triveniben held that “[t]he procedural fairness is required to be observed at every stage and till the last breath of the life… Speedy trial is a part of one’s fundamental right to life and liberty. This principle…is no less important for disposal of mercy petition.”.Procedural due process- which the Court in Bhullar thinks of as quibbling over process, and as the “bogey of human rights” has, since Menaka Gandhi, been one of the most important constitutional bulwarks against state oppression in India. In Menaka Gandhi the Supreme Court recognized that a person cannot be deprived of life or personal liberty without following a just, fair and reasonable procedure. This fundamental right extends to all actions of the state that deprive a person of life or liberty, including the power to commute a sentence, which is itself a constitutional power and has to be exercised in a constitutionally valid manner. Therefore, due process rights are not only the fundamental right of a convict, but are also and concurrently, important limitations on state action. The Constitution does not give the state the power to deprive a person of their life or liberty except by following due process. If that is the case, and if delay causes mental torture and is therefore unfair, unjust and unreasonable (as the Court in Triveniben recognizes), then why does the nature of the crime dictate whether the court should condone the delay or not? The Court is in effect saying that torture of a convict is just, fair and reasonable as long as the crime was serious enough. In such a case the fundamental rights of a person sentenced to death becomes, in Krishna Iyer’s inimitable words, “chimerical constitutional claptrap.”.IV. Terrorism and the Legal Black Hole.The Court’s only reason for not commuting the death sentence after an inordinate delay that leads to mental torture is that this is a case of terrorism. This is the crux of the decision and is in keeping with a long line of cases where the Court has created a regime of exception, a legal black hole if you will, in dealing with terror related cases. Just as light bends in the presence of a black hole and the normal laws of physics do not apply, so also in the presence of terror all rules of law get distorted and bent out of shape. Bhullar himself has been a victim of the legal black hole phenomenon twice. In rejecting his appeal against his conviction, the Supreme Court had held in 2002 that the requirement of proving a case beyond reasonable doubt – otherwise called the golden thread that runs through criminal jurisprudence – is only a guideline. Similarly in the present case, the Court characterized the insistence on due process as “rais[ing] the bogey of human rights.” Therefore, the normal rule of proof beyond reasonable doubt becomes a guideline, and due process becomes a bogey when used in the context of terror..Other branches of the state are not immune to the black hole phenomenon. Ajmal Kasab’s hush-hush hanging denied him the right to appeal against his clemency petition, a right otherwise recognized in Maru Ram and Kehar Singh. Afzal Guru’s entire case was built around the distortion of the normal rules of law. In death too, the secrecy surrounding the hanging ensured that normal procedures did not apply to him. India is not the only country facing this “terror- as – legal – black hole” phenomenon. The regime of legal exception that is Guantanamo Bay has also often been dubbed a legal black hole. Recently, the denial of Miranda rights to the suspected Boston bomber was justified by invoking the category of “unlawful enemy combatant,” the US euphemism of choice for denying the application of the rule of law. Due process, the rule of law, and fundamental constitutional values bend before the almighty terrorist threat..V. Conclusion: Whither Due Process on Death Row?.In sum, the entire decision in Bhullar is badly reasoned and completely unprincipled. The only justification that the Court has to offer for not commuting the death sentence is that on the “peculiar” facts of the case- that this is a case of terror- such a commutation is not warranted. The Court in effect gives the executive a carte blanche to keep a terror convict on death row, and potentially even indefinitely. As per the Court’s reasoning then, the executive is not bound by the constraints of Article 21 in dealing with terror convicts on death row. The Court does not engage with what makes a terror case, in any material sense, different from other rarest of the rare cases, and why the normal rules of due process should not apply to such cases. The Court also does not explain why it would not rely upon the evidence that indicated that Bhullar had a suffered serious mental and physical health issues as a result of his long incarceration pending execution..It is disheartening that a Court that has recently determined that completing one’s commitment to making movies is a humanitarian ground for the dilution of the rigour of the law, does not find it a problem to send a person with mental health issues caused by the state’s own apathy, to the gallows. Even though the Court found that since 1999 the Presidential Secretariat has not dealt with clemency petitions with “requisite seriousness,” and exhorts the government to deal with such matters expeditiously, it fails to take seriously the fact that Bhullar has been incarcerated for a period of 8 and a half years, without having his petition decided. The government kept Bhullar incarcerated and waiting for 3072 days before informing him of its decision regarding his clemency petition. Of this period, the government had no explanation, valid or not, for why the matter lay before the President and was not dealt with for a period of 2128 days. Justice Bhagwati had once lamented that “our justice system has become so dehumanised that lawyers and Judges do not feel a sense of revolt at caging people in jail for years…” When Supreme Court revisits, as it soon will, the issue of delays in deciding clemency petitions, it should reflect on Justice Bhagwati’s anguish, our core constitutional values, and future of our commitment to due process..The author is an Assistant Professor at National Law University, Delhi. She can be reached at email@example.com. (1989) 1 SCC 678. Devender Pal Singh v. NCT, AIR 2002 SC 1661 (per Pasayat J.). T.V. Vaitheeswaran v. State of Tamil Nadu,  2 SCR 348 overruled in Sher Singh v. State of Punjab, (1983) 2 SCC 344. Soering v. United Kingdom, 161 Eur. Ct. H.R. at 154 (1989); Canadian case. Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995). Pratt v. The Attorney General for Jamaica, Privy Council Appeal No. 10, 22 (1993). Supra note 3. See e.g., Pratt v. The Attorney General for Jamaica, Privy Council Appeal No. 10, 22 (1993). As per the Supreme Court, “[t]he thrust of the argument … is that inordinate delay in disposal of mercy petition had tendered the sentence of death cruel, inhuman and degrading and this is nothing short of another punishment inflicted upon the condemned prisoner.”  2 SCC 582. Epuru Sudhakar v. Government of A.P, (2006) 8 SCC 161. Sunil Batra v. Delhi Administration, 1978 AIR 1675. See Mrinal Satish & Aparna Chandra, Of Maternal State and Minimalist Judiciary: The Indian Supreme Court’s Approach to Terror Related Adjudication, 21(1) Nat’l L. School. India Rev. 54 (2009). Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939.