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Above: Justice Kurien Joseph revived the death penalty debate in one of his last judgments/Photo: Anil Shakya


Recent court judgments have tended to take a more humane view of not just the issue of capital punishment but even issues relating to convicts waiting on death row

By Vipin Pubby in Chandigarh


Among the last judgments that Justice Kurien Joseph delivered before his retirement last month was one that commuted the death sentence of a murder accused to life imprisonment. In a minority judgment delivered on November 28, Justice Joseph noted that it was high time the imposition of death as a punishment, however heinous the crime, be reviewed. The two other judges on the bench agreed with him in commuting the sentence to life imprisonment, but differed on the issue of the constitutionality of capital punishment.

Public opinion in the country on the abolition of the death penalty remains sharply divided but some recent judgments of the Supreme Court and High Courts have tended to take a more humane view of not just the issue of capital punishment but even issues relating to convicts on death row. Courts are increasingly attempting to usher in reforms and are prodding the government to review some archaic laws dating back to the British era.

The Punjab Jail Manual, for instance, specifies that “every prisoner condemned to death is to be confined in a cell apart from all other prisoners, and is to be placed by day and by night under the charge of a special guard. No person can communicate with him without the authority of the Superintendent. The prisoner condemned to death is only permitted to occupy the courtyard of his cell for half an hour each morning and evening”.

Taking cognisance of the provision, a division bench of the Punjab and Haryana High Court had earlier this month abolished the practice of keeping death row inmates in solitary confinement in Haryana jails. The High Court said that the rule was without authority of law and amounted to additional punishment. In its order, the Court called the provision “anarchic, cruel and insensitive”, reflective of “a colonial mindset”, and violative of Articles 20 (2) and 21 of the Constitution.

In a 111-page judgment, the Court said the practice “amounts to torture and is violative of a person’s basic human rights”.

The bench comprising Justices Rajiv Sharma and Gurvinder Singh Gill also said the “convict shall not be segregated/isolated till the sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial process. The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time, i.e. 2-3 days”.

The order came as part of a judgment commuting the death sentence of three persons convicted by a Mahendergarh court for the rape and murder of a nine-year-old in 2014 to a mandatory 20-year term without remissions.

The court order for “abolishing” the rule is specific to the “practice” adopted by jail authorities in Haryana. However, the bench did not pass any order to remove the provision from the Punjab Jail Manual, which has been adopted by Haryana. Removal of the provision will require the Punjab government to make amendments to the Jail Manual, or the court, acting on a legal challenge, to quash the provision.

The division bench passed the verdict in response to appeals filed by three convicts against the death sentence awarded to them and the murder reference sent by the trial court for confirmation by the High Court. The advocates representing them also pointed out that the convicts had been sent to solitary confinement immediately after being sentenced to death.

Last month, Justice Joseph along with Justices AM Khanwilkar and DY Chandrachud took up for review a case concerning capital punishment. The review petition related to a case wherein the special leave petition filed against the imposition of capital punishment was dismissed in limine by a bench of the Supreme Court in 2006.

The bench had dismissed the case without hearing it. Under the norm, the court need not give any justification for not hearing a case as it is assumed that it has made up its mind before the start of hearings. The three-judge bench deciding to reopen and review the earlier decision of the Court in such a case was perhaps unprecedented.

Earlier in 2014, a Supreme Court bench of then Chief Justice of India P Sathasivam and Justices RM Lodha, HL Dattu and Sudhansu Jyoti Mukhopadhaya, had commuted the death penalty of 1993 Delhi bomb blast convict Devender Pal Singh Bhullar to life imprisonment.

The bench said that because of the “unexplained/inordinate delay” of eight years in disposing of his mercy petition and on the ground of Bhullar’s “insanity”, it was allowing the curative peti­tion to commute his death sentence to life in prison. Bhullar was suffering from severe depression with psychotic features, as per medical reports.

Significantly, Justice Sathasivam had also presided over the bench in the Shatrughan Chauhan case in January 2014, and the commutation of the death penalty for Rajiv Gandhi’s assassins earlier that year.

In the former case, while commuting the death sentence imposed on the petitioners to imprisonment for life, the Supreme Court had validated the established principle that “unexplained/ unreasonable/inordinate delay in disposal of mercy petition is one of the supervening circumstances for commutation of death sentence to life imprisonment”. The Supreme Court had further observed that “insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment”.

Citing that judgment in the Bhullar case, the Supreme Court had said: “We deem it fit to commute the death sentence imposed on Devender Pal Singh Bhullar to life imprisonment both on the ground of unexplained/inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity of the accused.”

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