By Vrinda Bhandari -
Constitutionally speaking, the death penalty in India is limited to the “rarest of the rare” cases and should be implemented in a time frame which is not “unjust, unfair and unreasonable”. Over the last two decades, hangings had become somewhat of a rarity. Since 2004, an informal moratorium seemed to have come into existence. In part, this was influenced by the Supreme Court’s admissions that it had failed to evolve a uniform and clear cut sentencing policy in respect of capital punishment and that the death penalty was subjective, arbitrary, influenced by the personal predilection of the judges and in danger of becoming a media spectacle. The recent execution of the two “terrorists”, Ajmal Kasab and Md. Afzal Guru, in complete secrecy, demonstrates that this no longer holds true.
A lot can be, and has been, said about the injustice perpetuated in these two cases and why India should abolish the death penalty, or at the very least, impose a moratorium on it. Nevertheless, this piece looks at the implications of these hangings for other convicts on death row. In April, 2012, the Supreme Court reserved judgment on the issue of inordinate delays in execution, after hearing the application of two convicts, Devender Pal Singh Bhullar and Mahendra Nath Das, whose mercy petitions were rejected, despite being on death row for more than a decade.
Bhullar was convicted for his involvement in a terror attack, on the basis of a sole, retracted confession and sentenced to death by a three judge bench in March, 2002. While two of the judges upheld the death sentence, the dissenting judge acquitted him, based on doubts about whether the confession, as the sole basis of evidence, was made voluntarily or truthfully. A further review petition was dismissed in December, 2002 by the same three judges, with the same result (the majority sentencing him to death and the minority acquitting him of any involvement with the crime). To now execute Bhullar would fly in the face of the Supreme Court’s dictum which limits the application of the death penalty to the “rarest of rare cases when the alternative option is unquestionably foreclosed.” Further decisions have expounded on this idea as requiring both a vertical (across benches) and horizontal (within the same bench) consensus, so as minimize the arbitrariness inherent in the sentencing process. Clearly, this had no bearing in Bhullar’s case.
Das’s story is another one of extreme. He was sentenced to death in 1999, with his mercy petition being rejected only in 2011. No date could be fixed for the execution however, since no hangman was available in his home State of Assam. The Prison Superintendent indicated that he would find a hangman from another State, but so far no action has been taken and Das sits on death row, awaiting the Supreme Court’s decision on his petition (see here and here).
It is ironic that delays which have characterized the clemency process in India now also affect the courts. Having reserved its judgment on 19th April, 2012 on whether prolonged delays in execution are violative of Article 21 of the Indian Constitution and the Triveniben guidelines, the Supreme Court is yet to answer the issue. Clearly this is not the last we have heard of this matter.
Vrinda Bhandari is a BCL candidate at Magdalen College, University of Oxford.