Friday, February 3, 2023

Right To A Dignified Final Exit

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The court has upheld the right of death row inmates to be treated with dignity and exhaust all legal remedies before being executed. This has raised its prestige in upholding justice and human rights

By India Legal Team

India’s death penalty jurisprudence took a decisively humane turn recently. On May 27, the Vacation Bench of the Sup-reme Court, comprising Justices AK Sikri and Uday Umesh Lalit in the Shabnam vs Union of India case held that a death-row convict does not lose his right to life and liberty under Article 21 of the constitution immediately after confirmation of his death sentence. Instead, he is entitled to exhaust all legal remedies, including the options of review petition, mercy petitions to the governor and the President and even a writ petition to challenge the rejection of mercy petitions, before being executed.

The Bench quashed the death warrants signed in haste by the Sessions Judge in Amroha district, Uttar Pradesh, in this case, without waiting for the exhaustion of the above remedies by the convicts. It was dealing with two writ petitions, one filed by a death-row convict, Shabnam, and another filed by the Death Penalty Litigation Clinic of National Law University, Delhi, on behalf of Shabnam’s co-accused, Salim, who was also a death row convict. Both Shabnam and Salim were convicted and sentenced to death for the murders of seven members of Shabnam’s family in a village in Uttar Pradesh in April 2008. While Shabnam is lodged in Moradabad jail, Salim is in Agra Jail. Both are awaiting execution.

The courts, from the trial court to the Supreme Court, found that both Shabnam and Salim had conspired to kill their victims, because Shabnam’s family opposed their love marriage, and by killing all seven, they aimed to grab the property owned by the family. Shabnam was a teacher, while Salim was unemployed. At the time of the offence, Shabnam was pregnant; she delivered the child while in jail. Her son, Taj, now seven years old, lives with her in jail.

Initially, both Shabnam and Salim denied any involvement in the murders; later, when the prosecution claimed clinching evidence against them, they tried to implicate each other in the crime. While Shabnam and Salim were represented by two different lawyers in the high court, in the Supreme Court, only one amicus curiae, appointed by the court, represented both.

Meanwhile, the Supreme Court’s speedy intervention to quash the death warrants against Shabnam and Salim, and its elaborate reasoning for doing so, has raised the prestige of India’s judiciary in the hallmark of justice and human rights, even though death penalty itself continues to be legal
in India.

The trial court first convicted and sentenced Shabnam and Salim to death on July 15, 2010, subject to confirmation by the High Court of Allahabad on April 26, 2013. The Supreme Court dismissed their appeals against the high court judgment on May 15, 2015. The sessions judge issued the death warrants on May 21.

The issue of death warrants, in haste, without even mentioning the date of execution, as clearly mandated by law, made the exercise of such power by the sessions judge legally vulnerable.

The counsel for the central government, Pinky Anand, told the Supreme Court that the Ministry of Home Affairs (MHA) had issued instructions, according to which, the jail superintendent is expected to intimate the convict, soon after the dismissal of his appeal by the Supreme Court, that if he desires to submit a mercy petition, it should be done in writing within seven days of
such intimation.

Obviously, the MHA’s instructions were illegal as the convict can choose to submit the mercy petition after the dismissal of the review petition by the Supreme Court.

A scathing attack of Indian mythology could come only from a fearless Dr Ambedkar; Periyar EVR’s book on Ramayana was sought to be banned in Uttar Pradesh.


The court must ponder on the flaws in its death penalty jurisprudence that results in confirmation of death sentences that might have been wrongly delivered.

Interestingly, in this case, the jail superintendent sent these death warrants back to the sessions judge, pointing out these were defective as they did not mention the date and time of execution of the death sentence.

It is significant that the Vacation Bench has used this opportunity to uphold the principles laid down in a related case by the Allahabad High Court, without waiting for a formal challenge. In People’s Union for Democratic Rights (PUDR) vs Union of India, the high court’s division bench had held in January 2015 that sufficient notice must be given to the convict before the issue of death warrant by the sessions court to enable him to consult his advocates and to be represented in the proceedings.

Secondly, the high court had held that the warrant must specify the exact date and time for execution and not a range of dates which places the prisoner in a state of uncertainty. Thirdly, the high court required a reasonable period of time to elapse between the date of the order on the execution warrant and the date fixed for execution so that the convict would have a reasonable opportunity to pursue legal recourse against the warrant and to have a final meeting with members of his family before the date fixed for execution. Immediate supply
of execution warrant to the convict, and provision of legal aid are other mandatory requirements.

The Supreme Court has pointed out that there is the limitation of 30 days prescribed for filing review petitions in the court. In case of convicts facing death penalty, the remedy of review has been given high procedural sanctity, as these petitions have to be heard by a Bench of three judges in an open court as mandated by the Supreme Court’s Constitution Bench in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India, in 2014. The Court held in this case that oral hearing in a review petition is an integral part of “reasonable procedure”. The Vacation Bench, therefore, held that the right to file a review petition is a valuable right given to convicts facing death penalty.

The Sikri-Lalit judgment is also significant for elevating the president or the governor’s power to pardon under Article 72 and 161 of the constitution respectively to high constitutional status. As it is a constitutional remedy provided to the convicts, it cannot be snatched by executing the death sentence before even giving them a chance or opportunity to avail the same, the court held. For this purpose, the state has to wait for reasonable period, even after such convicts fail in the review petition if they so file, the court added. Otherwise, there would be violation of the famous rhetoric of Emperor Ashoka who said: “State should not punish with vengeance”, it said.

The Supreme Court’s defense of the rights of death row convicts must not be construed in a strict legal sense. The court must be congratulated for upholding the principle that their right to be treated with human dignity continues till a convict meets his destiny. The court clarified that torture, humiliation, forced labor, etc, infringe on human dignity. The court, borrowed from the US Supreme Court’s judgment in Furman v Georgia (1972) and in Gregg v Georgia (1976) to hold that punishment is cruel and unusual if it does not comport with human dignity. Then, it cited how the constitutional courts in Canada, Hungary and South Africa have held capital punishment as constituting a serious impairment of human dignity, and therefore, unconstitutional. In India, the court added, even if death sentence is to be awarded, it has to be in accord with due dignity.

Way back in 1980, in Bachan Singh vs State of Punjab, the Supreme Court’s five-judge Constitution Bench upheld the constitutional validity of death penalty, but held that it could be imposed only in the rarest of rare cases, and that it is permissible only when the alternative sentence of life imprisonment is unquestionably foreclosed.

In order to fulfill these twin requirements, the court has been evolving several tests to determine whether death penalty is justified in a given case.

Critics of death penalty, however, have been pointing out how the court has been inconsistent in its death penalty jurisprudence, emphasizing crime tests rather than criminal tests. While a crime may be horrific, brutal, and diabolic, Bachan Singh required courts to examine whether the criminal, convicted for committing the crime, could be reformed. The onus is on the state to provide the proof that the criminal could not be reformed; only then is the imposition of death sentence warranted, the court had held in the Bachan Singh case.
Over the years, this principle has been consistently violated by all courts. The apex court itself has acknowledged that it erred in many cases, thus resulting in a serious miscarriage of justice.

The judgment in the Shabnam case must make the court introspect on the flaws in its death penalty jurisprudence, which results in confirmation of death sentences that might have been wrongly delivered.

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