Recently, in the case of Shatrughan Chauhan v. Union of India, a three-judge bench of the Indian Supreme Court delivered a landmark judgment on the death penalty: holding, in particular, that an excessive delay in carrying out the death sentence was an essential mitigating factor in a plea for commutation. In doing so, it joined jurisdictions such as the United States and the Privy Council, and overruled its own 2013 judgment in Bhullar v. NCT.
In Bhullar, the Supreme Court relied upon a concurring judgment in the previous case of Triveniben, that appeared to hold that delay need not be a ground for commutation. The Court drew a distinction between ordinary capital crimes and capital crimes under terrorism statutes (at issue in Bhullar). It held that because of the serious nature of the crimes involved, an excessive delay in processing a death row convict’s mercy petition need not be a ground for commuting the death sentence to life imprisonment. Thus, the Court had effectively held that the nature of the capital crime determined the due process treatment that the convict was entitled to.
In Shatrughan Chauhan,the Supreme Court comprehensively rejected this reasoning. It held that the Bhullar court had overlooked the Triveniben’s majority judgment’s contrary stance that a delay in carrying out the death sentence was, indeed, one ground for commutation; and thus, the Court held Bhullar to be per incuriam (i.e. decided without reference to an earlier relevant judgment, and thus having no force as precedent). The Court held, on the other hand, that:
“There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence.” (para 63)
The Court, however, refused to provide a specific time after which a delay would render commutation necessary, and held that each case would be adjudicated on its own merits. In essence, the Court thus made delay an essential mitigating factor. This would be considered on the Court’s “balance sheet” enquiry, under which it draws up a list of aggravating and mitigating factors, in order to decide whether or not to award the death penalty in a particular case.
At the heart of the argument is the idea that keeping a death row convict under the shadow of death for years is a form of cruel, inhuman and degrading punishment that no civilized society (whether or not it allows capital punishment) should inflict upon human beings (this short story by Jean-Paule Sartre and this poem by Oscar Wilde perhaps drive home the point most forcefully). The inevitable mental agony that accompanies waiting for an inevitable death, demeans individual dignity. Insofar as the Court has interpreted Article 21’s guarantee of the right to life to include treating all individuals with dignity, the judgment reaffirms the humanism that is the foundation the Constitution, and that whatever the crime might have been, human beings continue to have a legitimate claim to be treated with dignity under the Constitution.
The Court further held, referring to a copious body of foreign law and international law, that insanity was a ground for commutation (paras 71 – 78); this is justified by our basic, intuitive notion that persons in a democracy ought to suffer penalties and burdens only to the extent that they are responsible for the actions that they undertake – and that punishment must respond not just to the nature of the crime, but to the ability of the actor to understand or comprehend the nature of his actions.
Coming to the fifteen individual cases before it, the Court applied the delay principle to commuted the sentences to life imprisonment. It ended by framing guidelines for the purpose in future, laying down various requirements such as the written communication of the outcome of a mercy petition to a convict and his family, the provision of free legal aid, a post-mortem report to verify whether hanging, as a form of capital punishment, caused undue amounts of pain, and so on.
The Shatrughan judgment is a progressive step in Indian death penalty jurisprudence. Perhaps it is best to leave the last word to the Court, in its penultimate paragraph, suggesting not just that the death penalty should be administered humanely, but that the very idea – say it softly – of State-sanctioned killing of human beings has no place in a civilized democracy:
“Remember, retribution has no Constitutional value in our largest democratic country.” (para 263)