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HindustanTimes Thu,21 Aug 2014

Hope at death's door: why it's good news for 400 convicts

Danish Raza, Hindustan Times  New Delhi, February 08, 2014
First Published: 23:29 IST(8/2/2014) | Last Updated: 12:16 IST(9/2/2014)

Few can understand the relevance of the January 21 Supreme Court (SC) verdict on death row convicts better than Arulselvi. The 40-year-old assistant professor at Tamil Nadu’s Annamalai University is the younger sister of Arivu, who, with two others, faces capital punishment in the Rajiv Gandhi assassination case.

The SC verdict will have a direct bearing on Arivu’s case as the group has been seeking to commute the death penalty served to them because of a delay in the disposal of their mercy petitions.

Hailed as a landmark judgement in capital punishment jurisprudence, the SC commuted the death sentences of 15 convicts on the grounds of delay in the disposal of their mercy petitions by the President, and set out guidelines to protect the rights of condemned prisoners. http://www.hindustantimes.com/Images/popup/2014/2/09_02_14-metro15b.gif

The SC verdict will also impact the case of Devender Pal Singh Bhullar, convicted in a 1993 bomb blast case in Delhi, in which nine people were killed. “The verdict has given us a ray of hope. I am sure that while hearing the writ petition for my brother, the SC will consider the January 21 verdict,” said Arulselvi.

The pendency or the time lapse between the SC pronouncing capital punishment and the President deciding on the mercy petition has been 13 years in the case of Arivu, Murugan and Santhan. It has been 10 years in Bhullar’s case.

“Based on the court order, it is appropriate to say that in every case where there is inexplicable and excessive delay in deciding the mercy petition, the death sentence has to be commuted,” said senior advocate Yug Mohit Chaudhry, who represented the 15 death row convicts whose sentences were commuted by the apex court.

Every death row sentence in India has to be confirmed by a high court. If the matter is filed before the SC and it upholds the order, a review petition can be filed. If the review petition also confirms capital punishment, the convict has the option of filing a curative petition before the SC. Filing a mercy petition before the governor or the president is the next stage.

According to the Asian Centre for Human Rights, a Delhi-based NGO, approximately 18 mercy petitions filed before the President between 1999 and 2011 have remained pending for between one to 13 years. Over 300 mercy petitions were filed before the President between 1950 and 2009. Of these, 214 were accepted and the death sentences commuted.

Since assuming office in July 2012, President Pranab Mukherjee has rejected 13 mercy petitions involving 19 death row convicts. The fulcrum of the SC verdict is that undue, inordinate and unreasonable delay in the execution of a death sentence amounts to torture, which violates Article 21 and so qualifies as grounds for the commutation of the sentence.

The court ruled that even death-row prisoners are entitled to fundamental rights until their last breath. “Just as 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,” observed the court.

Human rights lawyer Colin Gonsalves says there is a flip side to the judgment. “We hope that post this verdict, there are no delays in the disposal of mercy petitions. But this also means that we are entering a dangerous territory where petitions may be decided upon in haste which may result in more executions,” he said.

In case of inordinate delays in deciding the petition, the death sentence will have to be commuted irrespective of the nature of the crime.

“The verdict cleared the confusion on whether the nature of the crime should be a consideration,” said Dr Anup Surendranath, Director of the Death Penalty Research Project at the National Law University, Delhi.

The SC court guidelines regarding the treatment of death row convicts, part of the January 21 order, will impact the fate of more than 400 death row convicts across the country. However, this can happen only if prison authorities and state bodies implement the directives properly.

“State-based legal aid groups and civil society will have to be proactive to ensure that the court directives are implemented,” said Surendranath.

Meanwhile, the debate on abolishing capital punishment continues.

“This judgment may be a victory from the legal point of view, but the real victory will be when the state decides to abolish capital punishment,” said Colin Gonsalves.

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Case Study

“Verdict brought closure to legal battle”

Around 11 am on January 21, as the three-judge bench at the Supreme Court commuted the death sentences of 15 convicts, Arun Kumar, thought he had not heard the verdict correctly.

According to the order, the death sentences of his elder brother Sanjeev Kumar and his wife Sonia had been commuted, on the grounds of delay in the disposal of their mercy petitions.

The couple, who have been in custody for more than 12 years, will now spend the rest of their lives behind bars.

The verdict brought closure to the legal battle Arun and his family had been fighting since 2004, after the Hissar sessions court sentenced the couple to death for the murders of eight family members of Sonia’s maternal family in 2001.

“Ever since, we have been getting nightmares that the two would be hanged,” said 33-year-old Arun, a sales executive with a diagnostic lab in Delhi.

While exploring all possible options to save the couple, Arun realised that the wait for a response to the mercy petition could be endless. While the Haryana governor took eight months to decide on the plea, the President sat on it for almost six years. “Every activity of the government authorities related to death row convicts is shrouded in secrecy.

The only way to get information is to use the Right to Information (RTI). But responses to RTI queries take 30 days to be released. What if the person is hanged in the meantime? It was stressful. We died every day,” Arun said.

Sanjeev and Sonia’s son was a year old when they were convicted. Now he is 13 and asks too many questions about his parents. “It is becoming difficult for us to hide facts from him. If we don’t tell him, he will get to know from the Internet, newspapers and TV,” worries Arun whose family sold their ancestral property and a house in Saharanpur, Uttar Pradesh, to raise Rs. 50 lakh and engage a good lawyer.

In June last year, when Amnesty International India put him in touch with advocate Yug Mohit Chaudhry, Arun told him that he had no money left to pay his fees. (Some names have been changed on request)

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