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Between life and death, the crucial difference -V Venkatesan
-The Hindu


Had the court known that Pratibha Patil was not told of the dissent in the Bhullar case, the outcome of his appeal might have been similar to that of Das's plea

The Supreme Court, in the course of just one month, has rendered two judgments that appear to be contradictory. As both the judgments have been rendered by the same Bench, comprising two judges, they need to be studied closely, to arrive at the law.

In Bhullar, delivered on April 12, the Bench comprising Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, held that the death row convict, Devender Pal Singh Bhullar, is not entitled to commutation of his death sentence into life imprisonment, even though there was undue, long delay of eight years in disposing of his mercy petition by the President.

In Mahendra Nath Das, delivered on May 1, the same Bench concluded that the convict's death sentence could be commuted to life imprisonment because much of the inordinate delay of 12 years in the rejection of his mercy petition by the President was unexplained, and therefore, inexcusable.

Undue long delay

The source of law for both the judgments is the Supreme Court's five-Judge Constitution Bench's judgment inTriveniben (1989), which had held that undue long delay in execution of the sentence of death would entitle the convict to approach the Supreme Court under Article 32. The Court, however, had added a rider that it would examine only the nature of delay caused and the circumstances that ensued after the sentence was fully confirmed by the judicial process. More important, the Court had made it clear that the delay jurisdiction would not enable the Court to reopen the conclusions reached by the Court while finally maintaining the sentence of death.

In Bhullar, the Bench had held that where a person is convicted for terrorism offences, undue long delay in deciding the mercy petition cannot be considered a mitigating factor. In holding so, the Bench unwittingly transgressed theTriveniben ruling that it cannot reopen the conclusions reached by the Court while maintaining the death sentence.Bhullar is not the appropriate case to lay down such a law, because the Supreme Court's judgment dismissing his appeal against the death sentence was marred by a serious dissent by Justice M.B. Shah, while the other two judges who found him guilty wanted the government to consider Justice Shah's dissent, while considering Bhullar's mercy petition.

To be fair to the Bhullar bench, it did not feel constrained by its own observations regarding persons convicted of terrorism becoming ineligible for relief on the ground of delay in execution. The bench took pains to follow theTriveniben dictum, to examine whether the state was guilty of dilatory conduct and whether the delay was for no reason at all.

Thus in Bhullar, the Bench reasoned that a substantial portion of the delay of eight years in deciding the convict's mercy petition could well-nigh be attributed to the unending spate of petitions on behalf of the petitioner by various persons (Paragraph 44).

In Paragraph 9.7 of Bhullar, the Bench observed: "After the matter was processed at different levels of the Government, in the backdrop of internal and external pressures, the case was finally submitted to the President on July 11, 2005 with the recommendation that the mercy petition of the petitioner be rejected. It is not borne out from the record as to what happened for the next five years and nine months, but this much is evident that no decision was taken by the President."

In Paragraph 45, it observed: "Unfortunately, the petition filed by the petitioner remained pending with the President for almost six years, between May 2005 and May 2011. During this period, immense pressure was brought upon the Government in the form of representations made by various political and non-political functionaries, organisations and several individuals from other countries. This appears to be [emphasis supplied] one of the reasons why the file remained pending in the President's Secretariat and no effort was made for deciding the petitioner's case ... On its part, the Ministry of Home Affairs also failed to take appropriate steps for reminding the President's Secretariat about the dire necessity of the disposal of the pending petitions. What was done in April and May 2011 could have been done in 2005 itself and that would have avoided unnecessary controversy."

The above paragraphs must have led the Bhullar bench to conclude that the delay was unexplained, and thus inexcusable; but it did not.

In Mahendra Nath Das, the Bench found intriguing that the then President, A.P.J. Abdul Kalam's September 30, 2005 note was not mentioned by the Home Minister when he submitted his recommendation to Mr. Kalam's successor, Pratibha Patil, on October 18, 2010 to reject Das' mercy petition.

Kalam's note

In this note, Mr. Kalam claimed that he carefully studied the mercy petition of Das, and found that his conduct did not show trace of pre-meditated murder. He wrote in that note: "The crime can well be attributed to a gross lack of mental equanimity on his part. In such circumstances, his mercy petition in my view, be accepted and his death sentence commuted to life-long imprisonment. During his further incarceration in prison, he may be given periodic counselling by spiritualist and moral leaders which could help reform his personality and mental psyche."

Although inordinate and unexplained delay was a factor, the Bench considered the government's omission to mention Mr. Kalam's note to his successor a serious infirmity vitiating the very rejection. Similar omission to inform Ms Patil of the government's failure to consider Justice Shah's dissent, under Section 432 (2) Cr.P.C., as suggested by the majority judges who held Bhullar guilty in 2002, could have achieved similar result, had it been brought to the notice of the Bhullar bench.

Ironically, in Paragraph 32, the Bhullar Bench found it proper to rely on Paragraph 13 of Triveniben, in which Justice G.L. Oza had clearly excluded the time spent on "repeated mercy petitions" at the instance of the convicted person himself while considering the question of delay.

The Bhullar bench simply assumed that Bhullar was responsible for filing of the several petitions on his behalf, without giving him an opportunity to address the Court on this issue in accordance with the principles of natural justice. Curiously, if this assumption is correct, then it will be inconsistent with the Triveniben ruling which excluded the time spent on mercy petitions while considering the question of delay.

Mr. Kalam, in his book, Turning Points, published last year, has explained why he exercised his pocket veto on most of the pending mercy petitions: "As a substantial number of cases have been pending in Rashtrapati Bhavan for many years, it is one inherited task that no president would feel happy about. I thought I should get all these cases examined from a normal citizen's point of view in terms of the crime, intensity of the crime and the social and financial status of the individuals who were convicted and awarded capital punishment. This study revealed to my surprise that almost all the cases which were pending had a social and economic bias. This gave me an impression that we were punishing the person who was least involved in the enmity and who did not have a direct motive for committing the crime..." (p.133)

In Mr. Kalam's view, while courts are hearing the capital punishment cases they should alert the law-enforcing authorities to intelligently find out the source of sustenance of the individual who is being punished and that of his family. This kind of analysis, he wrote, may lead to the real person and the motive which has led to the crime.

Contemporary reports in the media, including an article by this writer in Frontline ("A Presidential dilemma," November 5-18, 2005), show that Mr. Kalam wrote to the government drawing its attention to his assessment of the pending mercy petitions. The government, both in Mahendra Nath Das and in Bhullar suppressed this communication from Mr. Kalam.

Both Bhullar and Mahendra Nath Das have upheld the right of death row convicts to seek relief on the ground of unexplained delay in deciding their mercy petitions. Their success is dependent on whether the Court subjects the government's explanation to intense scrutiny and unravels any mitigating factors which might have been concealed from the President.