13.5.1967 3 ZakirHussain 13.5.1967 22 0 22

- 3.5.1969 715Maru Ram v. Union of India , (1981) 1 SCC 107, at para 61. 716This table is based on archival research and RTI data collected by Bikram Jeet Batra and others. Official figures of mercy petitions disposed of by the Presidents at serial nos. 1-9 are not available, and the figures in the table are based on empirical verification from the archives which may not be complete.

4 V.V. Giri 3.5.1969 - 3 0 3 20.7.1969;

24.8.1974 5 Fakrudhin Ali Ahmed 24.8.1974 NA NA 0

11.2.1977 6 N Sanjeeva Reddy 25.7.1977 NA NA 0

- 5.7.1982 7 Zail Singh 25.7.1982 2 30 32

25.7.1987 8 R. Venkatraman 25.7.1987 5 45 50

25.7.1992 9 S.D. Sharma 25.7.1992 0 18 18

25.7.1997 10 K.R. Narayanan 25.7.1997 0 0 0

25.7.2002 11 A.P.J Kalam 25.7.2002 1 1 2

25.7.2007 12 PratibhaPatil 25.7.2007 34 5 39

25.7.2012 13 Pranab Mukherjee 25.7.2012 2 31 33

Presidents, only one mercy petition was rejected as against 262 commutations of death sentence to life imprisonment. As per available records, President Rajendra Prasad commuted the death sentences in 180 out of the 181 mercy petitions he decided, rejecting only one. President Radhakrishnan commuted the death sentences in all the 57 mercy petitions decided by him. President Hussain and President Giri commuted the death sentence in all the petitions decided by them, while President Ahmed and President Reddy did not get to deal with any mercy petitions in their tenure.

6.5.4 In contrast to the first phase (1950-1982), between 1982 and 1997, three Presidents rejected, between then, 93 mercy petitions and commuted seven death sentences. President Zail Singh rejected 30 of the 32 mercy petitions he decided, and President 189 Venkatraman rejected 45 of the 50 mercy petitions decided by him. Subsequently, President Sharma rejected all the 18 mercy petitions put up before him.

6.5.5 In what can be called the third phase i.e. 1997-2007, the two Presidents kept almost all the mercy petitions received by them from the government of the day pending, and only two mercy petitions were decided during this period. While President Narayanan did not take any decision on any mercy petition before him, President Abdul Kalam acted only twice during his tenure resulting in one rejection and another commutation. During their combined tenure of ten years, they put the brakes on the disposal of mercy petitions.

6.5.6 Later, President Pratibha Patil during her Presidency rejected five mercy petitions, and commuted 34 death sentences. The current President of India, Shri Pranab Mukherjee has thus far rejected 31 of the 33 mercy petitions decided by him.

6.5.7 A perusal of the chart of mercy petitions disposed by Presidents suggests that a death-row convict's fate in matters of life and death may not only depend on the ideology and views of the government of the day but also on the personal views and belief systems of the President.

F. Judicial Review of Exercise of Mercy Powers 6.6.1 The Supreme Court in Shatrughan Chauhan has recorded that the Home Ministry considers the following factors while deciding mercy petitions:

Writ Courts in numerous cases have examined the manner in which the executive has considered mercy petitions. In fact, the Supreme Court as part of the batch matter Shatrughan Chauhan case heard 11 writ petitions challenging the rejection of the mercy petition by the executive. Some of these decisions are analysed in the following pages.

718Sunder Singh's Writ [Writ Petition (Crl.) No. 192/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India , (2014) 3 SCC 1. See paras 79-87 for discussion on law, and paras 178-195 for the outcome in Writ Petition (Crl.) No. 192/2013.

consisting of government psychiatrists who had opined that he was suffering from chronic schizophrenia and required long term treatment. This information had been periodically communicated to the State Government and the Ministry of Home Affairs, Government of India, who nevertheless chose to reject his mercy petitions. He was eventually found to be "not mentally fit to be awarded the death penalty"719 by a team of psychiatrists appointed by the State Government and his death sentence was commuted by the Supreme Court.

(ii) Cases involving Long delays in Investigation and Trial a. The Case of Gurmeet Singh720 6.6.4 When a convict on death row has already spent a considerable period of time in prison, before the mercy plea is decided by the President, it becomes a strong factor in deciding whether or not such a prisoner still deserves the additional punishment of execution.

6.6.5 Gurmeet was arrested on 16.10.1986, convicted and sentenced to death by the trial court on 20.7.1992. The High Court confirmed his death sentence (per majority) on 8.3.1996, and the Supreme Court upheld the conviction and death sentence on 28.9.2005. The convict's mercy petition was decided on 1.3.2013, by which time he had spent 27 years in custody, of which about 21 years were under a death sentence. These factors were ignored and his mercy petition was rejected. The Supreme Court in Shatrughan Chauhan commuted the death sentence of Gurmeet Singh on account of inordinate time taken by the executive in disposal of his mercy petition.

719Shatrughan Chauhan v. Union of India , (2014) 3 SCC 1, at para 190. 720Gurmeet Singh's Writ [Writ Petition (Crl.) No. 193/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India , (2014) 3 SCC 1. See paras 148-16 for the outcome in Writ Petition (Crl.) No. 193/2013. See also Gurmeet Singh v. State of U.P. , (2005) 12 SCC 107.

Madiah were arrested on 14.7.1993, and convicted by the trial court under the Terrorist and Disruptive Activities (Prevention) Acton 29.9.2001. They were sentenced to life imprisonment. The state appealed to the Supreme Court for enhancement of sentence, but its special leave petition was dismissed due to delay. When the criminal appeal filed by the convicts was being heard, the Supreme Court, suo motu, issued notice for enhancement of sentence, and then sentenced the convicts to death on 29.1.2004. This was the first time the convicts had been sentenced to death, and since it had been done by the Supreme Court there was no appeal possible after this. When the convict's mercy pleas were decided 9 years later, they had already spent 19 years and 7 months in custody in prison. Simon, Bilavendran, Gnanprakasam and Madiah were aged 50, 55, 60 and 64 years when their mercy petitions were rejected by the President on 8.2.2013 after a delay of about 9 years. Their petitions were finally allowed by the Supreme Court.

(iii) Partial and Incomplete Summary Prepared for President: The Case of Mahendra Nath Das722 6.6.7 When Mahendra Nath Das challenged the rejection of his mercy petition by the President, the Supreme Court summoned the records relating to the mercy petition and discovered that the recommendation for clemency made by a former President in this very case was not put before or communicated to the President Pratibha Patil when she was asked to reject the mercy petition. The Supreme Court held it to be a very serious lapse, and, combined with the 11 years delay taken in the disposal of the mercy petition, was 721 Writ preferred by Simon and others [(Writ Petition (Crl.) No. 34/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC

1. See paras 120-137 for the outcome in the said Writ Petition (Crl.) No. 34/2013. See also Simon v. State of Karnataka , (2004) 2 SCC 694. 722 Mahendra Nath Das v. Union of India , (2013) 6 SCC 253.

good enough reason to quash the rejection of the mercy petition and commute the death sentence.

(iv) Non-Application of Mind a. The Case of Dhananjoy Chatterjee723 6.6.8 In the case of Dhananjoy Chatterjee, when the Governor was advised to reject the mercy petition, he was not informed about the mitigating circumstances of the case. The Supreme Court held the same to be a serious error, which had prejudiced the convict, and consequently quashed the rejection of the mercy petition. However, the mercy petition preferred by Dhananjoy Chatterjee was subsequently rejected by the executive and he was executed.

b. The Case of Bandu Baburao Tidke724 6.6.9 Tidke's mercy petition was received in the Ministry of Home Affairs in 2007. On 2.6.2012, it was decided to commute his death sentence. However, unknown to the President, the Ministry of Home Affairs and the State Government, Tidke had expired in prison about five years earlier on 18.10.2007 while awaiting a verdict on his mercy plea. His mercy petition had been decided without obtaining updated information from the prison authorities or the State Government, raising questions about the diligence exercised and procedures in adjudicating mercy petitions.

(v) Mercy Petition Rejected Without Access to Relevant Records of the Case: The Case of Praveen Kumar725 6.6.10 Even though Rule V of the Mercy Petition Rules specifically requires that the entire record be sent to the Central Government when it is deciding the mercy 723 Dhananjoy Chatterjee v. State of W.B. , (2004) 9 SCC 751. 724 Bandu Baburao Tidke v. State of Karnataka (Unreported Order in SLP Crl. 3048 of 2006) dated 10.7.2006.

725 Praveen Kumar's Writ [Writ Petition (Crl.) No. 187/2013] was considered in the batch matter Shatrughan Chauhan v. Union of India , (2014) 3 SCC 1. See paras 139-141 for the outcome in the Writ Petition(Crl.) No. 187/2013.

petition, and even though the Guidelines used by the Ministry of Home Affairs clearly requires the close scrutiny of the record, in many cases it has been found that the Central Government has rejected a convict's mercy petition without reading or obtaining the trial court record.

6.6.11 For example, in Praveen Kumar's case, the Supreme Court found that his mercy petition had been rejected by the Central Government and the President without reading or obtaining the record of the trial court. Consequently, no attention at all was paid to the mitigating circumstances in this case or the circumstances relating to the convict which are necessary for adjudication of mercy petitions as per the Ministry of Home Affairs' guidelines.

(vi) Wrongful Executions and Failure of the Clemency Process

(a) The Case of Jeeta Singh726 6.6.12 The case of Jeeta Singh has been discussed in the previous chapter, but is of relevance here as well. Jeeta Singh, Harbans Singh and Kashmira Singh were sentenced to death by the trial court for equal roles in an offence of murder. The High Court confirmed their death sentences. Each of them filed separate appeals to the Supreme Court which came up for hearing before different Benches. Jeeta's special leave petition ('SLP') was dismissed on 15.4.1976. Kashmira's SLP was admitted on the question of sentence, and on 10.4.1977 his appeal was allowed and the death sentence was commuted by the Supreme Court. Harbans Singh's SLP was dismissed on 16.10.1978. His review petition was dismissed on 9.5.1980, and his mercy petition was rejected by the President on 22.8.1981. While rejecting Harbans and Jeeta's mercy petitions, the executive did not note that the Supreme Court had allowed the appeal and had commuted the death sentence of an identically placed co-accused (Kashmira Singh) more than 4 years 726 Harbans Singh v. State of U.P. , (1982) 2 SCC 101.

earlier. Harbans Singh and Jeeta Singh were scheduled for execution on 6.10.1981. Harbans Singh once again appealed to the Supreme Court by way of an Article 32 petition, and was saved. Jeeta did not, and was hanged.727

(b) The Cases of Ravji Rao728 and Surja Ram729 6.6.13 Cases of Ravji Rao and Surja Ram have been discussed in the previous chapter. Here, the focus is how their mercy petitions were dealt with by the executive.

6.6.14 In Ravji @ Ram Chandra v. State of Rajasthan ('Ravji'),730 a case which was decided by a Bench of two judges, the Supreme Court explicitly held:

This aspect of the decision in the Ravji's case is in direct conflict with the Bachan Singh ruling where the Court held that which held that in all cases, including the most brutal and heinous crimes, circumstances pertaining to the criminal should be given full weight.732 As noted in the previous chapter, the Court in Santosh Kumar Bariyar v. State of Maharashtra ('Bariyar') noticed the conflict between Ravji's case and Bachan Singh and noted the Ravji decision as a per incuriam judgment.

727 Harbans Singh v. State of U.P. , (1982) 2 SCC 101. See also Bachan Singh v. State of Punjab, (Justice Bhagwati 's dissent), (1982) 3 SCC 24, at para 71, where he termed Harbans Singh 's case as "the most striking example of freakishness in imposition of death penalty".

728 Ravji alias Ram Chandra v. State of Rajasthan , (1996) 2 SCC 175. 729 Surja Ram v. State of Rajasthan , (1996) 6 SCC 271. 730 (1996) 2 SCC 175.

731 Ravji alias Ram Chandra v. State of Rajasthan , (1996) 2 SCC 175, at para 24. 732 Bachan Singh v. State of Punjab , (1980) 2 SCC 684, at para 161.

6.6.16 Though Ravji was sentenced to death on the basis of a per incuriam judgment, his mercy petition was rejected in a mere 8 days on 19.3.1996 and he was executed on 4.5.1996. Similarly, the mercy petition of Surja Ram, who was also wrongly sentenced to death on the same reasoning, was executed on 7.4.1997. His mercy petition was rejected in 14 days on 7.3.1997.

(vii) Cases of Other Prisoners Sentenced to Death under Judgments Subsequently Declared to be Per Incuriam 6.6.17 The Supreme Court in the recent years has found a number of decisions, which have resulted in death sentences to be per incuriam. This aspect has also been dealt with in the previous chapter.733

(a) Cases which have placed reliance on the Per Incuriam Decision of Ravji 6.6.18 In Bariyar, the Supreme Court, after pointing out the error in Ravji's case, also noted 6 other cases where Ravji's case was followed and held that these decisions were also wrongly decided:

convicts in these six cases have been brought on record and considered by the Supreme Court during the sentencing deliberations. The cases mentioned above have been declared to be per incuriam in Bariyar by the Supreme Court for having followed Ravji. Another case, Ankush Maruti Shinde and Ors v. State of Maharashtra,735 where six prisoners were sentenced to death by explicitly following Ravji's wrong reasoning like the cases mentioned above, was decided just a few days before Bariyar and was therefore not noticed in that decision.

6.6.20 Subsequent to Bariyar, the Supreme Court again in Dilip Tiwari v. State of Mahrashtra736 raised the issue of error committed in Ravji's case and other cases in which Ravji was followed. The Supreme Court in Rajesh Kumar v. State737 once again emphasized the miscarriage of justice caused in the Ravji Rao case, and other cases, which followed the Ravji's precedent. Thereafter, the Supreme Court in Mohinder Singh v. State of Punjab,738 has held that Ravji's case and those following it have been wrongly decided.

Bariyar has doubted the award of death sentence in Saibanna v. State of Karnataka ('Saibanna'). The facts of the case bear out that Saibanna had killed his first wife as he suspected that she was unfaithful to him. He was convicted and sentenced to life imprisonment on 2.2.1993. He re-married whilst he was out of the prison on parole. Later, on 13.9.1994 when he was again released on parole, he killed his second wife as well suspecting that she too was unfaithful to him. In 1995 he was charged under Section 303 IPC, which prescribed the mandatory death sentence, even though the Section had already been struck down by the 735 (2009) 6 SCC 667 at para 28.

736 Dilip Tiwari v. State of Mahrashtra , (2010) 1 SCC 775, at para 68. 737 Rajesh Kumar v. State , (2011) 13 SCC 706, at paras 66-70. 738 Mohinder Singh v. State of Punjab , (2013) 3 SCC 294, at para 37. 739 Saibanna v. State of Karnataka , (2005) 4 SCC 165.

Supreme Court in Mithu v. State of Punjab ('Mithu').740 The High Court proceeded to confirm the death sentence under Section 303 IPC. The Supreme Court in appeal upheld the judgment.741 The Court held that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment.

6.6.22 Subsequently, the Supreme Court in Aloke Nath Dutta v. State of West Bengal742 held that the view taken in the petitioner's case by the Supreme Court was "doubtful". Thereafter, in Bariyar, the Court held that its judgment in Saibanna was "inconsistent with Mithu and Bachan Singh,"743 both of which are judgments by Constitution Benches. This admission of error in Saibanna's case by the Supreme Court was also brought to the notice of the President by 14 retired judges (including one former Supreme Court judge, five former Chief Justices of different High Courts, and eight former High Court judges). The President rejected Saibanna's mercy petition on 4.1.2013.

(c) Decisions held to be Per Incuriam by Sangeet and Khade 6.6.23 Similarly, the Supreme Court in Shankar Khade doubted the correctness of the imposition of the death penalty in Dhananjoy Chatterjee v. State of West Bengal,744 where the Court had held that "the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. "745 In Khade, the Court opined that prima facie the judgment had not accounted for 740 Mithu v. State of Punjab , (1983) 2 SCC 277. 741 Saibanna v. State of Karnataka , (2005) 4 SCC 165. 742 Aloke NathDutta v. State of West Bengal , (2007) 12 SCC 230, at paras 149-50. 743 Santosh Kumar Bariyar v. State of Maharashtra , (2009) 6 SCC 498, at paras 49-52. 744 (1994) 2 SCC 220.

745 Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, at para 15. The exclusive focus of this decision on the crime and not the aspects pertaining to the convict was questioned in Khade.

mitigating circumstances relating to the offender. Dhananjoy Chatterjee was executed in 2004.

6.6.24 Similarly, in Sangeet, the Court noted an additional three cases where Bachan Singh's direction to consider both aggravating and mitigating circumstances had not been followed.746 G. Constitutional Implications of Pain and Suffering Imposed on Convicts on Death Row in the Pre-Execution Phase 6.7.1 In India, death row convicts typically spend many years by the time they exhaust their criminal appeals. Once the death sentence is finally confirmed by the Supreme Court, a convict further waits for years on end waiting to hear from the Governor and the President of India on the mercy petition preferred by him. More often than not, death row convicts are shifted to solitary confinement as soon as the trial court awards them death sentence and are also exposed to multiple execution warrants.

6.7.2 A prisoner under a sentence of death ekes out an existence under the hangman's noose and suffers from extreme agony, anxiety and debilitating fear of an impending execution and uncertainty regarding the same. The amalgam of such unique circumstances produces physical and psychological conditions of near- torture for the death row convict.747 This experience thus endured by a prisoner on the death row is also termed as 'death row phenomena'.

6.7.3 One of the main components of the death row phenomena pertain to the unique stresses of living under a sentence of death which includes the convict's mental anguish of anticipating the impending execution. The passage of every moment also presents the convict with a prospect of hope, which in turn 746 Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Rajendra Pralhadrao Wasnik v. State of Maharashtra , (2012) 4 SCC 37; Mohd. Mannan v. State of Bihar , (2011) 5 SCC 317.

747 Shatrughan Chauhan v. Union of India , (2014) 3 SCC 1, at para 61.

produces constant mental struggle as to whether he will eventually live or not.

6.7.4 Further, the death row phenomenon is compounded by the degrading effects of conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions.

6.7.5 Constitutionally, the question relate to implications flowing from a scenario where a death row convict prior to execution of his death sentence is subjected to a prolonged period of imprisonment where he suffers from anguish, rising levels of agony and stress arising out of living in the ever-present shadow of the noose. The question is whether this dehumanizing and degrading experience borne by the convict constitutes a legal condition which can have the effect of rendering the subsequent execution of death sentence impermissible.

6.7.6 The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu748 and thereafter in Sher Singh v. State of Punjab749 ('Sher Singh ') and Triveniben v. State of Gujarat750 ('Triveniben') has recognized the degrading and dehumanizing nature of the suffering endured by a death row convict on account of prolonged delay in the execution of his death sentence. The Court has treated prolonged delay as a "supervening circumstance" which has the effect of rendering the sentence of death inexecutable.

6.7.7 Over the years, an international consensus has emerged around the fact that execution after avoidable delay under the harsh conditions of death row constitutes cruel and excessive punishment.751 748 (1983) 2 SCC 68.

749 (1983) 2 SCC 344.

750 (1989) 1 SCC 678.

751 Soering v. United Kingdom, 161 Eur. Ct. H.R. at 154 (1989); 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).The Privy Council in Pratt [1994] 2 A.C. 33 held that "it was torture, far more cruel that death itself, for a person 201

(i) Enduring Long Years on Death Row 6.7.8 The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu ('Vatheeswaran'),752 sets the due process bar very high for an execution to be allowed to be carried out after imposition of an otherwise valid death sentence. The Court in Vatheeswaran for the first time recognized the constitutional implications flowing from the unique nature of suffering and pain implicit in pre-execution imprisonment of a convict on death row waiting for the hanging to take place. The Supreme Court in Vatheeswaran based its analysis on the fact that Article 21 inheres in the prisoner till his last breath and even while the noose is being fastened around his neck. The Court also observed that other than the mass of suffering a prisoner has to endure on account of living for years in the shadow of death sentence, avoidable delay also makes the process of execution of death sentence unfair, unreasonable, arbitrary and capricious and thereby, violative of procedural due process guarantees enshrined under Articles 21 , 14 and 19.753 The Court in Vatheeswaran captures the injury done to Article 21 rights of the convict in following terms:

to be kept on death row in a state of suspended animation, knowing that on any day the authorities could carry out their announced intention to deliberately extinguish life." 752 (1983) 2 SCC 68.

753 T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, at para 20; Sher Singh v.

State of Punjab, (1983) 2 SCC 344, at para 23; Jagdish v. State of M.P. , (2009) 9 SCC 495, at paras 48-49.

12. What are the constitutional implications of the dehumanising factor of prolonged delay in the execution of a sentence of death? Let us turn at once to Article 21 of the Constitution, for, it is to that Article that we must first look for protection whenever life or liberty is threatened. Article 21 says: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The dimensions of Article 21 which at one time appeared to be constricted by A.K. Gopalan v. State of Madras [AIR 1950 SC 27] have been truly expanded by Maneka Gandhi v. Union of India [( 1978) 1 SCC 248] and Sunil Batra v. Delhi Administration [(1978) 4 SCC 494].754 (Emphasis supplied) 6.7.9 The Court while siding with the dissenting opinion of Lord Scarman and Lord Brightman in the Privy Council decision in Noel Riley v. Attorney- General,755 held that prolonged delay in the execution of a death sentence contravenes Article 21 rights of the convict regardless of the cause and nature of delay. The Court held that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death."756 In other words, the Vatheeswaran limit of two years did not treat judicial delay differently from clemency delay i.e. the Court in Vatheeswaran extended this protection also to delays caused during trial and appeal. This aspect of Vatheeswaran came to be doubted by a three judge Bench of Sher Singh.757 The Court observed in Sher Singh that the appellate courts in normal course take upto four or five years to process appeals apart from the time spent by the Constitutional authorities under Articles 72 and 161 in considering the mercy petitions. The Court in Sher Singh therefore, departed from the rule of thumb approach ( of 2 years) 754 T.V. Vatheeswaran v. State of T.N. , (1983) 2 SCC 68, at paras 11-12. 755 1982 Criminal Law Review 679.

756 T.V. Vatheeswaran v. State of T.N. , (1983) 2 SCC 68, at para 21. 757 Sher Singh v. State of Punjab , (1983) 2 SCC 344.

propounded by the Vatheeswaran Court and held that no pre-determined period of delay can be held to guarantee frustration of death sentence.

6.7.10 A Constitution Bench of the Supreme Court in Triveniben,758 also found favour with the conclusions arrived at by the Court in Sher Singh. The Court in Triveniben held that a death row convict while waiting for his appeal to be taken up in the appellate life cycle still has a "ray of hope" of getting a favourable judicial order. The Court held that in such circumstances where appeal is still pending, the convict does not suffer from mental torture of waiting for an eventual execution as the sentence of death has not yet become a sure certainty. The Triveniben Court in certain terms held that the delay for the purpose of an Article 21 claim made by the convict could only be said to kick in once the judicial process has come to an end after the Supreme Court has dismissed the appeal.759 6.7.11 The Supreme Court in Sher Singh also held that in such Article 32 petitions a death row convict cannot be allowed to take advantage of delay which is caused on account of proceedings filed by him to delay the execution. The Court held that the equitable basis of a prisoner's plea for commutation in such a case is compromised if he has in any away contributed to the delay caused in disposal of his mercy petition.760 a. Revised Standard of Delay in Pratt 6.7.12 The Supreme Court in Sher Singh and thereafter in Triveniben purportedly rationalized the law on degrading punishment on account of avoidable delay in execution by pushing time taken in the appellate proceedings out of the delay calculation. It also forbids the convict to claim benefit for delay caused on account 758 Triveniben v. State of Gujarat , (1989) 1 SCC 678. 759 Sher Singh v. State of Punjab , (1983) 2 SCC 344, at paras 18-19; Triveniben v. State of Gujarat , (1989) 1 SCC 678, at para 16; Triveniben v. State of Gujarat , (1988) 4 SCC 574, at para 2.

760 Triveniben v. State of Gujarat , (1989) 1 SCC 678, at paras 17, 23; Shatrughan Chauhan v. Union of India , (2014) 3 SCC 1, at para 48.

of proceedings preferred by him. It is to be noted that the Supreme Court in Sher Singh cited the common experience of disposal of appeals before the High Court and the Supreme Court to be four or five years on this count. However, the international norms on this count have since undergone change.

6.7.13 A decade after the decision in Noel Riley v. Attorney-General761 came out, the Privy Council reversed itself in Pratt and Others v. AG of Jamaica ('Pratt')762, citing the Indian Supreme Court decisions in Vatheeswaran, Sher Singh and Triveniben, and recognized that prolonged delay renders the death sentence too inhuman and degrading to be executed. But in doing so, the Privy Council presented a wholesome understanding of delay. The Privy Council today does not make a distinction on the basis of nature of delay and causes of delay while considering the oppressive effect of long years of wait on the death row prisoner. The focus of the Privy Council is only on the human rights implications flowing from the delayed execution. The Privy Council in Pratt noticed the shift in Indian law from Vatheeswaran to Triveniben on the aspect of definition of delay constituting degrading punishment and sided with the former. The Privy Council held:

of his life or personal liberty except according to procedure established by law."

In Sher Singh and Others v. The State of Punjab the court held:

The court pointed out that to impose a strict time limit of two years would enable a prisoner to defeat the ends of justice by pursuing a series of frivolous and untenable proceedings.

In Smt. Treveniben v. State of Gujarat (1989) 1 S.C.J. 383 the Supreme Court of India approved the judgment in Sher Singh v. The State of Punjab and held that a sentence of death imposed by the "Apex Court", which will itself have taken into account delay when imposing the death sentence, can only be set aside thereafter upon petition to the Supreme Court upon grounds of delay occurring after that date. Oza J. said, at page 410:-

In their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after 206 sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence. (Emphasis supplied) 6.7.14 The two-year standard set out by the Supreme Court in Vatheeswaran was neither sensitive to the distinction between executive delay in consideration of mercy petitions and judicial delays nor to the delay caused on account of litigation efforts of the prisoner. The Supreme Court in Vatheeswaran, like the Privy Council now in Pratt, took a principled position on the consequences and the effect of avoidable delay on a death row convict. However, the Vatheeswaran decision, which served as a positive precedent for the Privy Council decision in Pratt, stands overruled today. The law as crystallized in Triveniben does not recognize pending appeals as actionable delay in terms of the death row phenomenon.

(b) Delayed Execution serves No Penological Purpose and is, therefore, Excessive 6.7.15 The Supreme Court has also held that delayed execution of the death sentence does not serve any of the penal purposes originally expected of it at the time the court confirmed the same on the convict. A delayed death sentence to that extent only embodies mindless and medieval retributive quality which offends the present civilizational norms of punishment. The 207 Supreme Court in Jagdish v. State of M.P.,763 invoked the embargo against cruel and unusual punishment in Eighth Amendment to the US Constitution to rule that delayed executions fail to serve both the retributive and deterrence rationales of death penalty. The Court observed:

45. While examining the matter in the background of the Eighth Amendment to the US Constitution which provides that:

it has been observed that though the death penalty was permissible, its effect was lost in case of delay (Gregg v. Georgia [49 L Ed 2d 859 : 428 US 153 (1976)] )764

(ii) Illegal Solitary Conditions of Detention 6.7.16 The Supreme Court outlawed the practice of solitary confinement in 1978 in Sunil Batra v. Delhi Administration ('Sunil Batra ').765 Solitary confinement was defined by the Supreme Court as confinement of a prisoner in a single cell apart from other prisoners.766 The Supreme Court in Sunil Batra observed that solitary confinement, absent a specific judicial order, may only be imposed when a prisoner is under an executable sentence of death, i.e. after his mercy petition has been rejected by the President, and even then under severe restrictions and modifications. The Court held:

prisoner stands rejected. Of course, thereafter Section 30(2) [of Prison Act ] is attracted. A second or a third, a fourth or further application for mercy does not take him out of that category unless there is a specific order by the competent authority staying the execution of the death sentence.767 6.7.17 While the illegality of solitary confinement has been made amply clear by the Supreme Court in more than one decision, the practice is still rampant especially for prisoners on the death row. In Shatrughan Chauhan, relying upon the Sunil Batra decision, the Supreme Court lamented about the existence of widespread use of solitary confinement for prisoners on death row and urged the prison authorities to implement the Sunil Batra decision in spirit. The Supreme Court observed:

Union of India,769 noticed that the convict was subjected to solitary confinement while he was on death row. The Court on account of delay in disposal of mercy petition by the executive authorities and imposition of solitary confinement, commuted the death sentence to life imprisonment.

6.7.19 Likewise, solitary confinement was also considered as a relevant supervening circumstance in the case of Peoples' Union of Democratic Rights v. Union of India & Others,770 where the death sentence of prisoner was commuted.

H. Conclusion 6.8.1 The executive's mercy powers cure defects of arbitrary and erroneous death sentences, and provide an additional bulwark against miscarriages of justice. Therefore, cases found unfit for mercy merit capital punishment. Mercy powers are thus a safeguard and necessary precondition for the death penalty.

6.8.2 When the writ courts in pursuance of judicial review powers, on a relative routine basis, find decisions of the executive to reject mercy petitions to be vitiated by procedural violations, arbitrariness and non- application of mind, the safeguard of mercy powers appears to not be working very well.

6.8.3 It is also distressing to note that the death row prisoners are routinely subjected to an extraordinary amalgam of excruciating psychological and physical suffering arising out of oppressive conditions of incarceration and long delays in trial, appeal and thereafter executive clemency. Despite repeated attempts by death row prisoners to invoke judicial review remedies to secure commutations on account of penal transgressions by the executive authorities, the practice of solitary confinement and 769 (2014) 13 SCALE 762.

770 2015 (2) ADJ 398.

long delays seem to continue unabated. It is the view of the Commission that the death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India.

6.8.4 Further, infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners, breaches the Article 21 barrier against degrading and excessive punishment. The lingering nature of this suffering is triggered as soon as any court sentences a prisoner to death, and therefore extends beyond the limited number of prisoners who come close to an execution after having lost in the Supreme Court and in the mercy petition phase as well.

6.8.5 The capital punishment enterprise as it operates in India, therefore perpetrates otherwise outlawed punitive practices that inflict pain, agony and torture which is often far beyond the maximum suffering permitted by Article 21. The debilitating effects of this complex phenomenon imposed on prisoners what can only be called a living death.

6.8.6 While the illegalities pertaining to death row phenomenon in a particular case may be addressed by the writ courts commuting the death sentence, the illegal suffering which the convicts have been subjected to while existing on death row casts a long shadow on the administration of penal justice in the country.

CHAPTER - VII CONCLUSIONS AND RECOMMENDATION A. Conclusions 7.1.1 The death penalty does not serve the penological goal of deterrence any more than life imprisonment. Further, life imprisonment under Indian law means imprisonment for the whole of life subject to just remissions which, in many states in cases of serious crimes, are granted only after many years of imprisonment which range from 30-60 years.771 7.1.2 Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of "an eye for an eye, tooth for a tooth" has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals. 7.1.3 In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure , 1973 to grant appropriate compensation to victims in suitable cases. The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence it is essential that a witness protection scheme also be established. The need for police reforms for better and 771Gopal Vinayak Godse v. State of Maharashtra , AIR 1961 SC. 600; Maru Ram v. Union of India , (1981) 1 SCC 107. For remission rules, see for example, Category 6 in Maharashtra's "Guidelines for Premature Release" dated 15.3.2010.

more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis.

7.1.4 In the last decade, the Supreme Court has on numerous occasions expressed concern about arbitrary sentencing in death penalty cases. The Court has noted that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied. In the Court's own words "extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle". The Court has also acknowledged erroneous imposition of the death sentence in contravention of Bachan Singh guidelines. Therefore, the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being "arbitrarily and freakishly imposed".

7.1.5 There exists no principled method to remove such arbitrariness from capital sentencing. A rigid, standardization or categorization of offences which does not take into account the difference between cases is arbitrary in that it treats different cases on the same footing. Anything less categorical, like the Bachan Singh framework itself, has demonstrably and admittedly failed.

7.1.6 Numerous committee reports as well as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains 214 fallible and vulnerable to misapplication. The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.

7.1.7 Clemency powers usually come into play after a judicial conviction and sentencing of an offender. In exercise of these clemency powers, the President and Governor are empowered to scrutinize the record of the case and differ with the judicial verdict on the point of guilt or sentence. Even when they do not so differ, they are empowered to exercise their clemency powers to ameliorate hardship, correct error, or to do complete justice in a case by taking into account factors that are outside and beyond the judicial ken. They are also empowered to look at fresh evidence which was not placed before the courts.772 Clemency powers, while exercisable for a wide range of considerations and on protean occasions, also function as the final safeguard against possibility of judicial error or miscarriage of justice. This casts a heavy responsibility on those wielding this power and necessitates a full application of mind, scrutiny of judicial records, and wide ranging inquiries in adjudicating a clemency petition, especially one from a prisoner under a judicially confirmed death sentence who is on the very verge of execution. Further, the Supreme Court in Shatrughan Chauhan773 has recorded various relevant considerations which are gone into by the Home Ministry while deciding mercy petitions.

7.1.8 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. The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive 772Kehar Singh v. Union of India , (1989) 1 SCC 204 paras 7, 10 and 16 773ShatrughanChauhan v. Union of India, (2014) 3 SCC 1, at paras 55-56.

has discharged its mercy powers. When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible. 7.1.9 Safeguards in the law have failed in providing a constitutionally secure environment for administration of this irrevocable punishment. The Courts' attempts to constitutionally discipline the execution of the death sentence has not always borne fruit.

7.1.10 Death row prisoners continue to face long delays in trials, appeals and thereafter in executive clemency. During this time, the prisoner on death row suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution. The Supreme Court has acknowledged that an amalgam of such unique circumstances produces physical and psychological conditions of near-torture for the death row convict.774 Further, the death row phenomenon is compounded by the degrading and oppressive effects of conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions. The death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India. Further, infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners, breaches the Article 21 barrier against degrading and excessive punishment.

7.1.11 In retaining and practicing the death penalty, India forms part of a small and ever dwindling group of nations. That 140 countries are now abolitionist in law or in practice, demonstrates that evolving standards of human dignity and decency do not support the death penalty. The international trend towards successful and sustained abolition also 774Shatrughan Chauhan v. Union of India , (2014) 3 SCC 1, at para 61.

confirms that retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime.

B. Recommendation 7.2.1 The Commission recommends that measures suggested in para 7.1.3 above, which include provisions for police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government. 7.2.2 The march of our own jurisprudence -- from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of rare cases - shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the Commission feels that time has come for India to move towards abolition of the death penalty. 7.2.3 Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.

7.2.4 The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.

7.2.5 The Commission trusts that this Report will contribute to a more rational, principled and informed debate on the abolition of the death penalty for all crimes.

7.2.6 Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible.

1. Justice Prabha Sridevan, Retired Judge, Madras High Court

2. Justice Hosbet Suresh, Retired Judge, Bombay High Court

3. Manish Tewari, Former Minister, Information & Broadcasting

4. Justice Bilal Nazki, Chairman, B.H.R.C.

5. Yug Chaudhry, Advocate, Mumbai

6. Ashish Khetan, Spokes Person, AAP

7. Prof. Dr. C Rajkumar, Vice Chancellor, O.P. Jindal Global University, Sonipat, Haryana

8. Prof. Ranbir Singh, Vice Chancellor, NLU, Delhi

9. Julio Ribeiro, Retired Sr. Police Officer 219

10. Majeed Memon, M.P. & Sr. Advocate

11. Brinda Karat, General Secretary, CPI(M)

12. Sankar Sen, Former D.G., Delhi Police/NHRC

13. Justice K. Chandru, Former Judge, Madras High Court

14. Prof NR Madhava Menon, Former Vice Chancellor, National Juridical School, Kolkota

15. Justice Rajinder Sachar, Former Judge, Delhi High Court

16. Shashi Tharoor, Former Union Minister

17. Kanimozhi, M.P. DMK

18. Prof Roger Hood, Centre of Criminology, University of Oxford

19. Dushyant Dave, Sr. Advocate

20. TR Andhyarujina, Sr. Advocate

21. Prof Mohan Gopal, Chairman, National Court Management system, Supreme Court

22. Anand Grover, Sr. Advocate

23. Wajahat Habibullah, Former, Chief Information Commissioner, Govt. Of India

24. D R Kaarthikeyan, Former Director General, National Human Rights Commission

25. Varun Gandhi, M.P. Lok Sabha

26. Sanjay Hegde, Advocate

27. Chaman Lal, Retired Sr. Police Officer IV. Other Invitees/Participants

1. Kusumjeet Sidhu, Secretary, Deptt. Of Justice, Ministry of Law & Justice, GOI

2. Navaz Kotwal, Consultant, Department of Justice

3. G. S. Bajpai, Registrar, NLU, Delhi

4. Colin Gonsalves, HRLN

5. Nitya Ramakrishnan, Sr. Advocate

6. Jawahar Raja, Advocate

7. Rani Shankardass, PRAJA

8. Aman Lekhi, Sr. Advocate

9. Dr YSR Murthy, President, O.P. Jindal Global University, Haryana

10. Justice S. B. Sinha, Retired Judge, Delhi High Court

11. D Nagasaila, PUCL

12. Vrinda Grover, Sr. Advocate

13. Sanhita Ambast, Advocate

14. Arghya Sengupta, Vidhi Centre of Legal Policy, New Delhi

15. PM Nair, Retired Sr. Police Officer 220

16. Meeran C Borwankar, Additional Director General Maharashtra (Prison)

17. Trideep Pais, Advocate

18. Shalini Gera, Jag Lag

19. Ravi Nair, SAHRDC

20. Vrinda Bhandari, Advocate

21. Suhas Chakma, ACHR

22. Usha Ramanathan, Social Activist

23. Sharib Ali, The Quill Foundation

24. Anil Gulati, Joint Secretary, Deptt. Of Justice, Ministry of Law & Justice, GOI

25. Nimesh Desai, Director, IHBAS

26. Dr. Anup Surendranath, Director, Death Penalty Project, NLU, Delhi

27. Venkatesh, CHRI

28. Manoj Mitta, Sr. Correspondent

29. V Venkatesan, Sr. Correspondent

30. Praveen Swami, Sr. Correspondent

31. Dr. Aparna Chandra, Asstt. Professor, NLU, Delhi

32. Dr. Mrinal Satish, Associate Professor, NLU, Delhi 221