Supreme Court issues directions to tackle delay in death penalty cases

The Supreme Court on Monday held that after an order of rejection of mercy petitions by the President or Governor is communicated to a death row convict, the sword of Damocles cannot be kept hanging on him for inordinately long time due to non execution of death warrants [State of Maharashtra v. Pradeep Yashwant Kokade and Others]..A three-judge Bench of Justices Abhay S Oka, Ahsanuddin Amanullah and Augustine George Masih further held that such unreasonable delay will violate the rights of accused under Article 21 of the Constitution and the top court will be justified in commuting the death penalty of such a convict to life imprisonment..The delay in execution of death penalty would be solely on the shoulders of the executive and not the constitutional authorities, the Court underlined.The observations were made while upholding the decision of Bombay High Court to commute the death sentence of two convicts to life imprisonment..Pertinently, the bench issued a slew of directions to tackle inordinate delay in execution of death sentence: .1. Undue, unexplained and inordinate delay in execution of the sentence of death will entitle the convict to approach this Court under Article 32. 2. Supreme Court will only examine the nature of the delay caused and circumstances that ensued after the judicial process finally confirmed the sentence and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death. 3. Keeping a convict in suspense while considering his mercy petitions by the Governor or the President for an inordinately long time will certainly cause agony to him/her. It creates adverse physical conditions and psychological stress on the convict. 4. Supreme Court while exercising its jurisdiction under Article 32 read with Article 21 of the Constitution, must consider the effect of inordinate delay in disposal of the clemency petition by the highest Constitutional authorities and cannot excuse the agonising delay caused only on the basis of the gravity of the crime; 5. Article 21 of the Constitution does not end with the pronouncement of the sentence but extends to the stage of execution of that sentence. An inordinate delay in the execution of the sentence of death has a dehumanising effect on the accused. 6. An inordinate and unexplained delay caused by circumstances beyond the prisoners' control mandates the commutation of a death sentence; 7. After the order of rejection of mercy petitions is communicated to a convict, the sword of Damocles cannot be kept hanging on him for inordinately long time. This can be very agonising, both mentally and physically. Such inordinate and unreasonable delay will violate his rights under Article 21 of the Constitution. In such a case, this Court will be justified in commuting the death penalty into life imprisonment. 8. No hard and fast rule can be laid down as regards the length of delay, which can be said to be inordinate. 9. The terms “undue” or “inordinate” cannot be interpreted by applying the rules of mathematics. The Courts, in such cases, deal with human issues and the effect of the delay on a particular convict. What delay is inordinate must depend on the facts of the case. 10. After the convict exhausts all remedies, including filing mercy petitions or after the Sessions Court is satisfied that the convict has taken a conscious decision of not availing the remedies, the execution warrant must be issued without any delay. It is the responsibility of the trial court to take up and conclude the proceedings of issuing a warrant of execution as expeditiously as possible. The trial court must give necessary out of turn priority. .The case was a 2019 criminal appeal preferred by the Maharashtra government. The State moved the apex court against the Bombay High Court's decision to commute the death sentence awarded to two men, Purushottam Borate and Pradeep Kokade, convicted for the rape and murder of a Pune BPO employee in 2007.The High Court commuted the sentence after noting that that the execution of the death penalty had been considerably delayed. The delay included around 1-2 years taken to process mercy petitions sent to the Governor by the convicts.Consequently, the High Court commuted the death sentence awarded to two convicts to life sentence, with a minimum of 35 years each to be actually served in prison before being entitled to remission (pre-mature release)..The Supreme Court held that the executive must promptly deal with the mercy petitions filed by the convicts of the death sentence. In this case, the approach of the executive, and especially the State Government, was casual and negligent, the Court opined.Therefore, it directed all States and Union Territories to establish a dedicated cell to be constituted by the Home Department or the Prison Department for dealing with mercy petitions of death row convicts..The dedicated cell shall be responsible for the prompt processing of the mercy petitions within the time frame laid down by the respective governments, stated the top court. It further directed that an official from the Law and Judiciary or Justice Department of the State Governments/Union Territories should be attached to the dedicated cell so constituted..The top court also issued guidelines for the Session court to follow:1. As soon as the order of the High Court confirming or imposing the death sentence is received by the Sessions Court, it must take note of the same and the disposed of case should be listed on the cause list. 2. The Sessions Court shall immediately issue notice to the State Public Prosecutor or the investigating agency calling upon them to state whether any appeal or special leave petition has been preferred before the Supreme Court and what is the outcome of the said petition/appeal;3. If the State Public Prosecutor or the investigating agency reports that the appeal is pending, as soon as the order of the Supreme Court confirming or restoring the death sentence is received by the Sessions Court, again, the disposed of case or miscellaneous applications should be listed on the cause list and notice be issued to the State Public Prosecutor or the investigating agency to ascertain whether any review/curative petitions or mercy petitions are pending. 4. Before issuing the warrant, notice should be issued to the convict, and the directions issued by the Allahabad High Court in People’s Union for Democratic Rights (PUDR) v. Union of India should be implemented by the Sessions Court5. If the convict so desires, legal aid be immediately provided to the convicts by the prison authorities for challenging the warrant. There shall be a gap of fifteen clear days between the date of the receipt of the order as well as warrant by the convict and the actual date of the execution..Advocate Shreeyash Lalit represented the State of Maharashtra. Advocate Payoshi Roy appeared for the convicts..[Read Judgment]