Secret executions of death row prisoners are increasingly becoming the order of the day in India. At least three (two ‘successful’, one failed) have been attempted in the last few months.
These incidents have been characterised by three kinds of secrecy. First, where the prisoner sentenced to death was not informed in advance about the circumstances surrounding his execution. Second, where the prisoner’s family was not given prior notice of the execution. Third, where the date of execution of a prisoner was kept away from the media and the public at large until after the execution took place. Each of the three cases involved one or more of these different kinds of state secrecy.
The most recent attempt involved Maganlal Barela, who was convicted for beheading his five daughters. His mercy petition was rejected by the President in July 2013 and his execution was scheduled soon thereafter. In a dramatic intervention, a senior advocate secured a stay on the execution of the death sentence hours before it was to take place, on the basis that the mercy petition was not dealt with in a fair and transparent way and that Barela was not informed about the rejection of his petition.
Although the Central Government has not spoken in one voice about the reasons underpinning the use of these covert tactics, news reports have given rise to a few dominant theories. To begin with, secret executions are intended to keep a lid, at least until the execution takes place, on expected repercussions and protests, and avoid the sensational media coverage that could be associated with executions of high profile prisoners. But most significantly, they foreclose the opportunity of moving a court seeking a stay order on the execution, as was done in Barela’s case.
Nussbaum argues that concerns of fair implementation render the death penalty unacceptable in India. The disquieting series of secret executions highlights one such concern. Although the Supreme Court bench granted a stay on Barela’s execution, it rhetorically asked about whether it was carving out a separate ‘post-mercy [petition] rejection jurisdiction’. This question lies at the crux of a complex problem: is it possible to maintain a criminal justice system that avoids delays and at the same time, accords procedural fairness to defendants facing the gallows? The government’s attempt to carry out secret executions is part of an ongoing cat-and-mouse-game between the government and the prisoner, which trivialises the gravity of imposing a sentence of death.
The path of criminal justice for those charged with capital offences is arduous. Trials take years to reach their conclusion and are followed by appeals through to the Supreme Court. A mercy petition to the President follows the Court’s confirmation of a death sentence. The President may take several years to dispose of the mercy petition, and his decision can be subjected to judicial review. Even if at this stage, the court chooses not to interfere with the President’s decision to reject the mercy petition, the prisoner may move a court after the execution date has been finalised but before the execution takes place. Throughout this process, those on death row remain in an ‘agony of suspense’ about their fate.
India is not alone in having to confront the dichotomy between avoiding delays and affording a fair trial to defendants on death row. In the South African Constitutional Court’s landmark decision abolishing the death penalty (S v Makwanyane), Justice Chaskalson concluded that to design a system of capital punishment that avoids arbitrariness and delays (that themselves cause cruelty and inhumanity) is exceedingly difficult. Justice Blackmun of the US Supreme Court also recognised that any effort to eliminate arbitrariness while preserving fairness in administering the death penalty was ‘doomed to failure’, and predicted that the death penalty would be declared unconstitutional by the Court in the future (Callins v Collins).
The government’s new policy of secret executions, which seeks to bypass ‘post-mercy petition’ judicial review, provides another opportunity for one of the world’s most arrear-ridden constitutional courts to introspect about the death penalty. The time has come to acknowledge the limitations of the Indian judicial process and disavow a form of punishment that is uniquely degrading in its irrevocability.
Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge and is an Editor of the Oxford Human Rights Hub Blog.