Tag: Death Penalty Procedure

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Litigation

Death and the special legislation – Why the CrPC’s death penalty safeguards should also be available when death is awarded under other laws

ProceduralLawOfTheDeathPenalty_RahulRamanApart from the Indian Penal Code, 1860, there are 23 statutes that prescribe the death penalty as a form of punishment in India. The Anti-Hijacking Act, 2016 is the most recent addition to this list.

The movement towards making the death penalty an exceptional punishment began in 1955, after the repeal of Section 367(5) of the Code of Criminal Procedure, 1898, which required courts to record reasons when deciding not to impose the death penalty. Several important substantive and procedural safeguards were then introduced by the legislature and the judiciary to ensure the fair administration of the death penalty.

When safeguards in the CrPC are not available

The Code of Criminal Procedure, 1973 (“CrPC”) requires the court in Section 354(3) to record “special reasons” while awarding the death penalty. It also requires the obligatory confirmation of the death sentence by the High Court. There are however, quasi-judicial bodies with the power to award the death penalty, which are bound only by the procedures prescribed in their parent statutes and not the CrPC. Some of these statutes include the Air Force Act, 1950 (“Air Force Act”), the Assam Rifles Act, 2006, the Defence of India Act, 1971, and the Karnataka Control of Organised Crime Act, 1999. These statutes remain bound by the principles of natural justice (S.N. Mukherjee v. Union of India, 1990 AIR 1984).

An example of a quasi-judicial proceeding that does not follow the procedures contained in the CrPC is that of “court martial”, provided for in the Army Act, 1950, the Air Force Act, and the Navy Act, 1957. The rules of procedure to be followed during a court martial proceeding are prescribed in the respective statutes itself. These procedures do not provide for safeguards similar to those in the CrPC. For example, there is no statutory onus on the court to provide “special reasons” in a court martial proceeding.

In S.N. Mukherjee v. Union of India, among the other issues before a constitution bench of the Supreme Court, inter-alia, were whether reasons are required to be recorded at the stage of (i) recording of finding and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition.

With respect to the first issue, the Court noted that the court martial is not required to record reasons at the stage of recording of findings and sentence. Similar conclusions were reached regarding the second and third issues as well. While these observations were made in relation to the provisions of the Army Act, these observations would hold true for the other two statutes as well since the procedures for court martial are similar.

Relying on the SK Mukherjeee dicta, the Delhi High Court in Balwinder Singh v. Union of India, 64(1996) DLT 385, decided not to interfere with the findings of court martial on the ground of absence of any ‘special reasons’ but commuted the death sentence to imprisonment for life on other grounds.

The petitioner was charged under Section 69 of the Army Act for committing murder. The general court martial found the petitioner guilty and sentenced him to death. This was further confirmed by the Central Government. The petitioner had also exhausted the recourse available to him under Section 164(2) of the Act. Section 164(1) and (2) provide for a remedy against, inter alia, the sentence of a court martial. The aggrieved party can present a petition before the confirming authority, and after that, to the Central Government or the Chief of Army Staff.

The petitioner, therefore, filed a writ petition under Article 226 of the Constitution challenging the above orders, questioning among other things, the absence of “special reasons” in the order of the general court martial, as stipulated under Section 354(3) of the CrPC. The petitioner also raised an argument in the alternative that the requirement under Section 354(3) should be read as a part of natural justice requirements of Article 21 of the Constitution.

The court reiterated the position laid down in SN Mukherjee, and said that the general court martial did not commit any error by not recording any ‘special reasons’ in the case. Similarly, the Court interpreted Section 162 of the Army Act to excuse even the confirming authority from providing reasons while confirming the sentence of death. Regardless, the court observed that if there are any shortcomings in the findings of general court martial or the confirming authority, they could be challenged under Article 32 or Article 226 of the Constitution. The Court failed to make any observation on the argument regarding Article 21 of the Constitution; that giving “special reasons” is essential in a case where death sentence is to be awarded irrespective of the nature of the court or tribunal.

Similarly, Section 64 of the Border Security Force Act, 1968 provides for the establishment of special courts. The General Security Force Court is empowered to pass a sentence of death under Section 72. Chapter VII (Sections 82 to 106), which lays down the procedure for the courts under this Act, does not contain any special procedure (as contained in CrPC) with respect to death sentence. The only additional requirement for passing a death sentence is that it should be passed with a concurrence of at least two-third members of the court. Other decisions of the Court can be passed by an absolute majority. This kind of voting requirement is present in other statutes that stipulate for trial by court martial as well.

Most of the other non-IPC legislations that stipulate death penalty among its punishments follow the special procedures mentioned in the CrPC with respect to the death penalty. For example, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there is a provision in Section 14 for establishing a special court for trying of offences committed under the Act. However, this court is also bound by the procedures prescribed in the CrPC.

The incorporation of special provisions with respect to the death penalty in the CrPC signifies the legislature’s intent to include additional safeguards that aim at ensuring maximum protection to a person sentenced to death. Considering the general legislative and judicial caution against the death penalty, it is important that a larger bench of the Supreme Court revisit the findings in S.N. Mukherjee. The requirements of giving ‘special reasons’ and obligatory confirmation by the High Court should be made imperative, regardless of the statute under which a person has been sentenced to death.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

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Litigation

Open court hearings in review petitions after Mohd. Arif (2014)

SohamGoswami_DeathPenaltyProcedureThe Supreme Court of India has qualified the scope and extent of the right to life enshrined in Article 21, through a series of judgments from A.K. Gopalan v. State of Madras, AIR 1950 SC 27 to Maneka Gandhi v. Union of India, AIR 1978 SC 597, ensuring that infringements upon life and personal liberty may only be made through “fair, just and reasonable procedure”.

So what of the procedure extinguishing life from a person who has been found guilty of capital offences? There is a comprehensive procedure under Indian law to ensure that a person sentenced to death may be afforded the maximum opportunities to present his side of the case so that he can hopefully be acquitted or his sentence commuted. A Court of Sessions, which is the competent court to record evidence and convict the accused, must cite its reasons in writing (Section 367 of the Code of Criminal Procedure, 1973) for awarding the death sentence and must then submit that decision to the state’s High Court for confirmation (Section 366). The sentence is considered valid only after confirmation and the convict may (if the High Court certifies the case under Article 134 of the Constitution) move the Supreme Court. The convict has a right of appeal if the High Court has either (a) overturned an acquittal or lesser conviction by the Court of Sessions and awarded the death sentence or (b) withdrawn proceedings before the Court of Sessions and conducted the same in the High Court.

The Supreme Court’s review jurisdiction

Under Article 137 of the Constitution, the Court may review cases decided by them. Order XL of the Supreme Court Rules, 1966 further require review to be done in chambers (that is, by judges, conferring amongst themselves without the assistance of counsel) and based on written pleadings made by counsel.

The Supreme Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India, AIR 1980 SC 808, upheld the constitutional validity of Order XL, Rule 2 (requiring review in chambers), citing the heavy burden upon the Supreme Court to hear oral arguments in all cases within its jurisdiction.

The Supreme Court however, in Mohd. Arif v. Registrar, Supreme Court of India and Others, (2014) 9 SCC 737, dealt with the question of whether death sentence cases would form a class by themselves, meriting separate treatment.

The disagreement in Mohd. Arif

Writing for the majority, Justice Rohinton F. Nariman held that due to the nature of the death penalty, where:

1. the punishment is irreversible, and

2. due to lack of sentencing guidelines, it is left to various judges as to the quantum of sentence to be awarded (for instance, one judge might award the death sentence in a certain case, while another judge might sentence someone to life imprisonment for the same offence and same circumstances), sentencing was often arbitrary;

the highest standard of scrutiny was required in such cases.

Justice Rohinton F. Nariman interpreted Justice V.R. Krishna Iyer’s (the author in P.N. Eswara Iyer) ruling as allowing for such cases to be heard orally in open court. He quotes paragraph 29A of P.N. Eswara Iyer “…indeed, there is no judicial cry for extinguishment of oral argument altogether.”

However, Justice Chelameswar dissented, holding that the question of arbitrary sentencing did not arise as the same judges of the Supreme Court who passed the original judgment were required to sit on the review bench.

However, Mohd. Arif (the lead petitioner) was denied the opportunity to file a review petition himself. This was because he had already submitted a curative petition (the last option in the Supreme Court) and the Court held that to grant him a review petition now would infinitely delay the process. The review petition is filed and admittedor dismissed prior to the curative petition.

Eventually, a Constitution Bench of the Supreme Court on January 19, 2016 allowed Arif to re-open his review petition on the ground that he would be the only person not receiving the benefit of a review petition, which would be unfair to him; further, the dismissal of the curative petition should not preclude the petitioner from receiving the benefit of a review petition in open court, no matter how slim the chance of success may be.

As one can see upon perusal of the judgment in Mohd. Arif, the purpose was to ensure that, no matter how slim, people receiving the death sentence should be given as many opportunities as permissible under the law for evidence to be re-appreciated. However, the problem that is apparent from the dissent of Justice Chelameswar is that ordinarily, the same Bench hearing the original case on merits deals with the review petition (unless any of the judges retire). It is unlikely therefore, that they would change their opinion on whether the convict should receive the death penalty; thus, the purpose of the review petition is not realised.

The purpose of the review bench, as is evident from Order XL of the Supreme Court Rules, is to merely check whether there is an error apparent on the face of the record. The composition of the bench should therefore, not matter, as the matter for appraisal should not lead to different conclusions. At the same time, the same judges having already looked into the matter once, would ordinarily not be willing to sit and review the whole case again.
Mohd. Arif is however, a pathbreaking judgment given its implications for prisoners on death row—that at the penultimate stage of proceedings at the Supreme Court, they are entitled to an open court hearing and reappreciation of evidence in their case argued by their lawyer. It remains to be seen, however, the manner in which Supreme Court deals with these petitions.

 

(Soham Goswami, currently in the third year at ILS Law College, Pune, is an intern at the Centre on the Death Penalty. The views expressed in this article are his alone.)

Categories
Litigation

Supervening circumstances and the commutation of a death sentence: A more definitive law from the Supreme Court

ProceduralLawOfTheDeathPenalty_RahulRamanIf the situation that prevailed at the time a sentence of death was delivered has changed, can the Supreme Court take those changed circumstances into account to commute a sentence of death? Less than two years ago, the Supreme Court in Shatrughan Chauhan v. Union of India, 2014 (3) SCC 1, looked into whether executing a death sentence notwithstanding the existence of such supervening circumstances would violate among other things, Article 21 of the Constitution. After weighing such circumstances in different petitions, it commuted the penalty of fifteen individuals to life imprisonment and laid down a more definitive law on the Court’s power of commutation.

The petitioners had claimed that the executive, while exercising its power under Articles 72 or 161, did not consider any supervening events. In a few previous decisions such as Triveniben (1989) and Jagdish v. State of Madhya Pradesh (2009), the Court had declared that it had a duty to protect a prisoner’s right to life till his last breath. This provided the Supreme Court with the legal basis to take supervening circumstances into consideration and those pleaded in Shatrughan Chauhan included delay, insanity, solitary confinement, and procedural lapses.

Delay in processing mercy petitions

The question of whether the executive’s delay in processing a mercy petition should be considered a supervening circumstance has troubled the Court for a long time. There is no stipulated time limit within which the executive has to dispose a mercy petition and often, there is inordinate delay.

Earlier, a division bench of the Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361, had held that a delay of two years in execution of a sentence after the judgment of the trial court would entitle the prisoner to plead for commutation of his sentence of death to life imprisonment. Soon after however, a three-judge bench in Sher Singh and Others v. Union of India, AIR 1983 SC 465, held that delay alone could not be a good enough ground for commutation of death sentence, and overruled the two-year delay rule. Nevertheless, this decision acknowledged a prisoner’s right to a fair procedure at all stages – trial, sentencing, and incarceration.

To resolve this apparent conflict, a constitution bench took up this issue in Triveniben v. State of Gujrat, 1988 (4) SCC 574. In a landmark verdict, the Court held that while an undue delay would entitle a punished individual to invoke Article 32, Vatheeswaran’s “two-year delay rule” was not correct.

The Court relied on this decision in Shatrughan Chauhan. It held that while considering the rejection of a clemency petition, the Court could not overlook the pain caused to the convict. Therefore, the Court was well within its judicial power under Article 21 read with Article 32 of the Constitution to hear a convict’s grievance and commute a death sentence to life imprisonment if it is found that that there had been undue, unexplained, and inordinate delay in execution due to the pendency of a mercy petition.

The Court decided not to lay down any compulsory period within which the President has to decide a mercy petition. While the Court would make such a determination on the facts and circumstances of individual cases, it suggested that the executive should itself weigh the aspect of delay while disposing of a mercy petition.

The Court also said that the decision of the Court in Devender Pal Singh Bhullar v. State (NCT) of Delhi, 2013 (6) SCC 195, which had disqualified cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 from scrutiny on account of delay, was per incuriam. Any person sentenced to death could avail “delay” as a supervening circumstance regardless of the offence and the statute under which he has been convicted. Later, the Supreme Court recognised this finding in Navneet Kaur v. State of NCT of Delhi, Curative Petition (Criminal) No. 88 of 2013 (Supreme Court) to commute Devender Pal Singh Bhullar’s death sentence to life imprisonment.

Insanity or mental illness

The next ground considered by the Court was that of “insanity” or “mental illness” as a supervening circumstance. The Court after referring to several international conventions like the International Covenant on Civil and Political Rights concluded that this was a valid supervening circumstance. It noted that once mental illness of the convicted individual is medically certified, executing him would be in violation of the international convention to which India was a party, and of Article 21 of the Constitution.

Solitary confinement

Despite underlining its own finding in Sunil Batra v. Delhi Administration and Others, 1978(4) SCC 494, the Supreme Court decided not to interfere on the ground of “solitary confinement” in Shatrughan Chauhan. Later however, the Allahabad High Court in People’s Union for Democratic Rights v. Union of India, 2015(2) ADJ 2015 and the Supreme Court in Ajay Kumar Pal v. Union of India, 2014(13) SCALE 762 held that “solitary confinement”, along with other factors, was a permissible supervening circumstance to commute death sentence to life imprisonment.

Procedural lapses

The final ground raised was that of “procedural lapses” made by the executive while disposing of mercy petitions. The Court held that the procedures prescribed for the Ministry of Home Affairs were a necessary requirement under Article 21 to treat the death row convicts fairly. It noted that the President should be provided with all the relevant material to assist him in disposing the mercy petitions. The concerned departments cannot give or seek piecemeal information regarding the petition to be decided. However, the scrutiny of a procedural anomaly would be done on a case-to-case basis.

The circumstances raised in Shatrughan Chauhan are not exhaustive. The addition (or removal) of supervening circumstances to this list would depend on the judicial attitudes to reconciling convict’s rights with those of the victim or the society. Further, despite the unambiguous decisions in Triveniben and Shatrughan Chauhan, it is entirely up to the Court to see on an individual basis, how to interpret ‘undue and unexplained’ delay and whether to permit it as a supervening circumstance.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)