Today, in Shatrughan Chauhan v. Union of India, the Supreme Court delivered a landmark judgment on the death penalty and, inter alia, overruled its own 2013 judgment in Bhullar v. NCT. Recall that in Bhullar, relying upon the concurring judgment of Shetty J. in Triveniben, the Supreme Court had held that for cases under terrorism statutes like TADA and POTA, because of the serious nature of the crimes involved, an excessive delay in processing a death row convict’s mercy petition could not be a ground for commuting the death sentence to life imprisonment (see Paragraph 40 of Bhullar). The Court in Bhullar observed:

“Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. The seriousness of the crimes committed by the terrorists can be gauged from the fact that many hundred innocent civilians and men in uniform have lost their lives. At times, their objective is to annihilate their rivals including the political opponents. They use bullets, bombs and other weapons of mass killing for achieving their perverted political and other goals or wage war against the State. While doing so, they do not show any respect for human lives. Before killing the victims, they do not think even for a second about the parents, wives, children and other near and dear ones of the victims. The families of those killed suffer the agony for their entire life, apart from financial and other losses. It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death. Many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights.” 

The Supreme Court rejected this reasoning. It held that in relying upon Shetty J.’s concurrence in Triveniben, the Bhullar court overlooked the majority judgment’s 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 to be considered on a standard Bachan Singh balance-sheet enquiry, required under the due process requirements of Article 21.

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, today’s judgment reaffirms the humanism that is the foundation the Constitution, and affirms 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. This is why, for instance, the American Supreme Court in Ford v. Wainwright held that executing the insane was a form of “cruel and unusual punishment” under the Eighth Amendment, and served no penological goals.

Coming to the fifteen individual cases before it, the Court found that in each of these cases, there had been an unexplained an unwarranted delay of many years, leaving the convicts on death row. Consequently, it commuted the sentences of life imprisonment. It ended by framing guidelines for the purpose, requiring that:

– there be no solitary confinement while the mercy petition is pending before the President

– free legal aid be provided to death row convicts

– the provision of all relevant materials to the President speedily and efficaciously

– the communication of the rejection of the mercy petition to the convict by the Governor, and/or then by the President, and to his family, in writing and as a matter of right (this is especially important, considering that the last execution India carried out, the family was not informed)

– a minimum of fourteen days’ notice to the convict, to allow him to meet his family (see above)

– regular physical and mental health check-ups

– provision of all relevant documents to the convict, so as to allow him the most efficacious access possible to judicial remedies

– a final meeting with friends and family

– a post-mortem report: this is especially important, as the Court linked this to the constitutionality of hanging itself: it had been argued that hanging caused undue amounts of pain – especially when death was caused not due to the breaking of the neck, but by long strangulation. The Court specifically held that the point of the post mortem was to ascertain how death had been caused. Feasibly, then, in the near future, if it is found that a significant number of hangings cause pain and other forms of physical degradation, it will be possible to challenge the constitutionality of this method itself.

Today’s judgment, it is submitted, is rightly decided. 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.” (Paragraph 263)