Death penalty... Supreme Court muddies waters

Published: Thursday, Feb 28,2013, 08:22 IST
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Death penalty, death sentence, sandalwood smuggler Veerappan, Supreme Court, Jammu and Kashmir, hanging of Afzal Guru, mercy petitions, Ajmal Kasab, apex court

By granting a six week stay on the death sentence of four aides of ivory and sandalwood smuggler Veerappan, the Supreme Court has heightened emotions in Jammu and Kashmir over the hanging of Afzal Guru, and strengthened feelings in some quarters that the President did an injustice by rejecting the mercy petitions of Ajmal Kasab and Afzal Guru. The Union Home Ministry has also come under a shadow for not giving the two an opportunity to seek relief from the apex court.

Given the sensitivity of the matter, Parliament should urgently fine tune the law and settle whether the judicial mind should be applied afresh to cases where clemency petitions have been decided by the President, on any pretext. Currently, the Court is hearing some high profile cases which essentially involve reviewing its own judgments; the Union Home Ministry’s recommendation to the President and the latter’s decision; and perhaps overturning the same. This could have a potentially explosive impact on the judicial system, especially in cases unduly politicized by activists and politicians.

In the present case of Simon & Ors vs State of Karnataka, in 2001, a TADA court in Mysore held four members of Veerappan’s gang - Simon, Gnana Prakash, Madhiah and Bilavendra - guilty of the killing of 22 persons in a landmine explosion on April 9, 1993. They were convicted under relevant sections of the Terrorist and Disruptive Activities (Prevention) Act, 1987, Indian Penal Code, Explosive Substances Act and Indian Arms Act, and sentenced to rigorous imprisonment for life besides fine and further imprisonment in default of payment of fine. It bears mentioning that the Veerappan gang is officially responsible for 120 murders at least, mostly of policemen and informers.

A Supreme Court bench comprising Justices YK Sabharwal and BN Agrawal decided their appeals on January 29, 2004. Examining the record of the case, the Court noted that the special Jungle Patrol led by superintendent K Gopalakrishnan was searching for the gang when one of two buses in which they were travelling was hit by a landmine laid by the criminals. This shattered the first bus in which policemen, foresters and informants were sitting; in all, 22 persons died and several were injured.

After the explosion, the gang fired upon the police party, but retreated when the latter returned the fire. Cases were filed against 121 persons; 50 were arrested and prosecuted, but all barring four were acquitted during trial. In the apex court, the convicts challenged their presence at the crime scene and involvement in the crime. The record, however, showed that several persons, including police officers in the second bus, and survivors in the first bus, identified the four men as present at the scene.

The Supreme Court observed that the Veerappan gang had unleashed such a reign of terror in the area that even Police needed an escort party to move about. The crime was brutal, a ‘rarest of the rare case’. Asserting that punishment must be commensurate with the crime committed, the Supreme Court held that while ordinarily the Appellate Court does not enhance punishment, this was “such a gross case that nothing but maximum sentence stipulated in law deserves to be awarded”.

The Court said, “We are conscious of the fact that the power to enhance death sentence from life should be very rarely exercised and only for strongest possible reasons … The question of enhancement of sentence to award death penalty can, however, be considered where the facts are such that to award any punishment less than maximum would shock the conscience of the court”.

In Machhi Singh & Ors v. State of Punjab [(1983) 3 SCC 470], the Supreme Court observed that one of the categories of rarest of rare case may be when the collective conscience of the community is so shocked that it will expect the holders of the judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

The pre-meditated planting of landmines en route the police party, and firing after the blast at the State police personnel and Special Task Force, was diabolical. The Court ruled that the appellants were a grave danger to society and had made normal life impossible for those living in the area. Asserting that it would be mockery of justice if extreme punishment were not imposed, the Court dismissed the appeals, confirmed the convictions, and enhanced the sentence of each convict from life imprisonment to death penalty.

President Pranab Mukherjee rejected the mercy petitions of all four on February 13, 2013. In the light of the quick executions of Ajmal Kasab and Afzal Guru, they appealed to the Supreme Court on grounds of inordinate delay in executing their sentences. This is a valid irritant which has been upsetting citizens enraged by the depredations of such marauders.

But can executions delayed for political reasons (even Delhi chief minister Sheila Dikshit told the Home Ministry that Afzal’s hanging could pose law and order problems in the city), be overturned by invoking delay after the President has rejected the plea for clemency?

The Supreme Court stayed the execution of Veerappan’s aides to await the verdict by a bench headed by Justice GS Singhvi on the question of whether inordinate delay in deciding mercy petitions could entitle a convict to relief.  Hearing the petition of Devender Pal Singh Bhullar and Narender Nath Das, the bench sought records of all cases of death sentences that were pending for several years, and reserved judgment in April 2012.

For ordinary citizens, a judicial verdict must satisfy their sense of Justice. If the Supreme Court first upholds the death penalty and then goes into the merits of the President’s giving or denying clemency, and overturns or undermines his decision on any count, it will make a travesty of Justice and the judicial process itself. In the light of recent experiences, the Supreme Court should rule (and Parliament should enact into law) that clemency petitions must be forwarded to the President within six months of the award of death penalty, and decided within another six months. In no circumstances should there be an appeal after the President’s decision.

Sandhya Jain, Editor Vijayvaani | Follow the writer on twitter.com/vijayvaani

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