The supreme
court of India on January 21, 2014 in Writ Petition filed by the Peoples’ Union
for Democratic Rights (PUDR), framed guidelines for effective governing of the
procedure of filing mercy petitions and for the cause of the death convicts
which is reproduced as under
“Guidelines:
259) In W.P (Crl) No 56 of 2013, Peoples’ Union
for Democratic Rights have pleaded for
guidelines for effective governing of the
procedure of filing mercy petitions and for the cause of
the death convicts It is well settled
law that executive action and the
legal procedure adopted
to deprive a person of his life or liberty must be
fair, just and
reasonable and the protection of Article 21 of the Constitution
of India inheres
in every person, even death-row
prisoners, till the very last breath of their
lives. We have already seen the
provisions of various State Prison Manuals and the actual procedure to be
followed in dealing with mercy petitions
and execution of convicts. In
view of
the disparities in
implementing the already existing
laws, we intend to frame
the following guidelines
for safeguarding the interest of the death row convicts.
1. Solitary Confinement: This Court, in Sunil Batra (supra), held that solitary or single
cell confinement prior to rejection of the mercy petition by the President is
unconstitutional. Almost all the prison Manuals
of the States provide necessary
rules governing the confinement of death convicts. The rules should not be interpreted to run counter
to the above ruling and violate Article 21 of the Constitution.
2. Legal
Aid: There is no provision in any of
the Prison Manuals
for providing legal aid, for preparing appeals or mercy petitions or for accessing
judicial remedies after the
mercy petition has
been rejected. Various judgments
of this Court have held that legal aid is a fundamental right under Article
21. Since this Court has also held that Article 21 rights inhere in a
convict till his last breath, even after
rejection of the mercy petition by the
President, the convict
can approach a writ court for commutation of the death sentence on the ground of
supervening events, if
available, and challenge
the rejection of the mercy petition and legal aid should be
provided to the convict at all
stages. Accordingly, Superintendent of
Jails are directed to intimate the rejection of mercy petitions to the nearest Legal
Aid Centre apart from intimating the convicts.
3. Procedure in placing the mercy petition
before the President: The Government of India has framed certain
guidelines for disposal
of mercy petitions filed by the death convicts after disposal
of their appeal by the
Supreme Court. As
and when any
such petition is received or communicated by the State
Government after the rejection by the Governor, necessary
materials such as police records,
judgment of the trial court, the High Court and the Supreme Court and
all other connected documents should be called at once fixing a time limit
for the authorities for forwarding
the same to
the Ministry of
Home Affairs. Even here,
though there are
instructions, we have
come across that in certain cases the Department calls for those records
in piece-meal or one by one and
in the same
way, the forwarding Departments are also not
adhering to the
procedure/instructions by sending
all the required materials at one stroke.
This should be strictly followed
to minimize the
delay. After getting
all the details, it
is for the
Ministry of Home
Affairs to send
the recommendation/their views to the President within a
reasonable and rational
time. Even after sending the necessary
particulars, if there is no response
from the office
of the President,
it is the responsibility of the Ministry of Home
Affairs to send
periodical reminders and to provide required materials for early
decision.
4.
Communication of Rejection of Mercy Petition
by the Governor: No prison manual has any provision for informing
the prisoner or his
family of the rejection of the mercy petition by the Governor. Since the convict has a constitutional right
under Article 161 to
make a mercy petition to the
Governor, he is entitled
to be informed
in writing of the decision on that mercy petition. The rejection of the mercy petition by the
Governor should forthwith be communicated to the convict and his family in writing
or through some other mode of communication available.
5. Communication
of Rejection of the Mercy Petition by
the President: Many, but not all,
prison manuals have provision for
informing the convict and his
family members of the rejection of mercy
petition by the President. All
States should inform the prisoner and their family members of the rejection of
the mercy petition by the President. Furthermore, even where prison
manuals provide for
informing the prisoner of the
rejection of the mercy petition, we have
seen that this information is always
communicated orally, and never in
writing. Since the convict has a constitutional right under Article 72
to make a mercy petition to the President, he is entitled to be informed in writing
of the decision on that mercy petition.
The rejection of the mercy petition by the President should forthwith be
communicated to the convict and his family in writing.
6. Death convicts are
entitled as a right to receive a copy of the rejection of the mercy petition by
the President and the Governor.
7. Minimum 14 days
notice for execution: Some prison
manuals do not provide for any minimum period
between the rejection
of the mercy petition being communicated to the
prisoner and his family
and the scheduled date of
execution. Some prison
manuals have a
minimum period of 1 day, others have a minimum period
of 14 days.
It is necessary that a minimum period of 14 days be stipulated between the
receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the
following reasons:-
a) It allows the prisoner to prepare himself mentally for execution,
to make his peace with god, prepare his will and settle other earthly affairs.
b) It allows the prisoner to have a last and final
meeting with his family members. It also
allows the prisoners’ family members to make arrangements to travel to the
prison which may be located at a distant place and meet the prisoner for the
last time. Without sufficient notice of
the scheduled date of execution, the
prisoners’ right to avail of judicial remedies will be thwarted and they will
be prevented from having a last and final meeting with their families. It is
the obligation of the Superintendent of Jail to see that the family members of
the convict receive the message of communication of rejection of mercy petition
in time.
8. Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their
mental balance on account of prolonged anxiety and suffering experienced on
death row. There should, therefore,
be regular mental health evaluation
of all death
row convicts and appropriate medical care should be given
to those in need.
9. Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to
stop an execution on account of the convict’s physical or mental ill
health. It is, therefore, necessary that
after the mercy petition is rejected and the execution warrant is issued, the
Prison Superintendent should satisfy himself on the basis of medical reports by
Government doctors and psychiatrists that the prisoner is in a fit physical and
mental condition to be executed. If the
Superintendent is of the opinion that the prisoner is not fit, he should
forthwith stop the execution, and produce the prisoner before a Medical Board
for a comprehensive evaluation and shall forward the report of the same to the
State Government for further action.
10.
Furnishing documents to the convict: Most of the
death row prisoners are extremely poor and do not have copies of their court papers,
judgments, etc. These documents are must for preparation of appeals, mercy
petitions and accessing post-mercy judicial remedies which are available to the
prisoner under Article 21 of the Constitution.
Since the availability of these documents is a necessary pre-requisite
to the accessing of these rights, it is necessary that copies of relevant documents
should be furnished to the prisoner within a week by the prison authorities to
assist in making mercy petition and petitioning the courts.
11. Final Meeting between Prisoner and his Family: While some prison manuals
provide for a final meeting between a condemned prisoner and his family
immediately prior to execution, many manuals do not. Such a procedure is intrinsic to humanity
and justice, and should be followed by all prison authorities. It is therefore, necessary for prison
authorities to facilitate and allow a final meeting between the prisoner and
his family and friends prior to his execution.
12. Post Mortem Reports: Although, none of the Jail
Manuals provide for compulsory post mortem to be conducted
on death
convicts after the execution, we think in the light of the
repeated arguments by the
petitioners herein asserting that there
is dearth of experienced
hangman in the country, the same must be made obligatory.
………………………….
…………………..
It is obvious from a reading of the aforesaid decision
that the method of hanging prescribed by Section 354(5) of the Code was held
not violative of the guaranteed right under
Article 21 of the Constitution on the basis of
scientific evidence and opinions of eminent medical persons which assured that
hanging is the least painful way of ending the life. However, it is the
contention of learned counsel for the respondents that owing to dearth of
experienced hangman, the accused are being hanged in violation of the due
procedure.
260) By making the performance of post mortem obligatory, the cause of
the death of the convict can be found out, which will reveal whether the person
died as a result of the dislocation of
the cervical vertebrate
or by strangulation which results
on account of too long a drop. Our
Constitution permits the execution of death sentence only through procedure
established by law and this procedure must
be just, fair
and reasonable. In our
considered view, making post mortem obligatory will ensure just,
fair and reasonable procedure of
execution of death sentence.
Conclusion:
261) In the aforesaid batch of cases, we are called upon to decide
on an evolving jurisprudence,
which India has to its credit
for being at the
forefront of the global legal
arena. Mercy jurisprudence is a
part of evolving standard of decency, which is the hallmark of the society.
262) Certainly, a series of Constitution Benches of this Court have upheld the Constitutional validity of the
death sentence in India over the span of
decades but these judgments in no way take away the duty to follow the
due procedure established by law in the execution of sentence. Like
the death sentence is passed
lawfully, the execution of the sentence must also be in consonance
with the Constitutional mandate and not
in violation of the
constitutional principles.
263) It is well established that exercising of power under Article 72/161
by the President or the Governor is a constitutional obligation and not a mere
prerogative. Considering the high status of office, the Constitutional framers
did not stipulate any outer time limit for disposing the mercy petitions under
the said Articles, which means it should be decided within reasonable time.
However, when the delay caused in disposing the mercy petitions is seen to be
unreasonable, unexplained and exorbitant, it is the duty of this Court to step
in and consider this aspect. Right to seek for mercy under Article 72/161 of
the Constitution is a constitutional right and not at the discretion or whims
of the executive. Every Constitutional duty
must be fulfilled with due care and diligence; otherwise judicial interference
is the command of the Constitution for upholding its values.
264) Remember, retribution has no Constitutional value in our largest democratic
country. In India, even an accused has a de facto protection under the
Constitution and it is the Court’s duty to shield and protect the same.
Therefore, we make it clear that
when the judiciary
interferes in such matters, it
does not really interfere with the
power exercised under Article 72/161 but only to uphold the
de facto protection provided by the
Constitution to every convict including death convicts.
………………………………………………………………..”
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