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Former judges call for commutation of death penalty
-The Hindu

13 men face death penalty even though the Supreme Court says they were erroneously sentenced

Over six weeks after a Maharashtra court ruled that Ankush Maruti Shinde was wrongly sentenced to death, as he was a juvenile when the crime was committed, he is still stuck in the death row ward of a Nagpur jail. In fact, the Supreme Court itself had ruled that the judgment was rendered per incuriam — in ignorance — by the apex court in an earlier judgment.

In jails across the country, 12 other men still have the threat of the gallows hanging over their heads though the Supreme Court declared that they were also erroneously sentenced to death. Two others have already been executed.

Fourteen former judges — of the Supreme Court and various High Courts — have now appealed to the President asking that these death sentences be commuted to life imprisonment.

“I am distressed to note that 13 persons in 7 different cases, who were erroneously sentenced to death as per the Supreme Court’s own admission, are currently facing imminent threat of execution,” says the letter, which was signed by the former Supreme Court judge, P.B. Sawant, as well as judges of various High Courts, including five former Chief Justices: A.P. Shah, B.A. Khan, Bilal Nazki, P.K. Misra and S.N. Bhargava.

In 1980, in the case of Bachan Singh vs State of Punjab, a Constitution Bench of the Supreme Court laid down guidelines on how to determine whether the death sentence was to be awarded or not. It noted that “the court must have regard to every relevant circumstance relating to the crime as well as the criminal,” emphasising that “in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender, also.”

However, in 1996, in the case of Ravji @ Ramachandra vs State of Rajasthan, the court held that “it is the nature and gravity of the crime but not the criminal which are germane for consideration.” Since this was contrary to the binding dictum in the Bachan Singh case, it was rendered per incuriam , and thus had no precedential value, and should not have been cited in subsequent judgments imposing the death penalty.

The Supreme Court made an extraordinary admission of its own error in 2009 in the Santosh Kumar Bariyar vs State of Maharashtra case. “We are not oblivious that the Ravji case has been followed in at least six decisions of this court in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriam,” and went on to list the errant decisions that have left the lives of 12 men at stake. “It does not appear that this court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases,” said the apex court.

In their letter to the President, the retired judges said the court’s acceptance of its own mistakes had come too late. “In what is possibly the gravest known miscarriage of justice in the history of crime and punishment in independent India, two such wrongly sentenced prisoners, Ravji Rao and Surja Ram, have already been executed on 4.5.1996 and 7.4.1997 respectively, pursuant to these flawed judgments. The Supreme Court’s admission of error has come too late for them,” said the letter.

The retired judges have made it clear that their appeal has nothing to do with the larger debate on the death penalty itself. Instead, they have raised concerns about the fair and just administration of the penalty. “Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in future,” says the letter. “This matter goes to the very heart of our Constitution and the system of democratic government because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court.”

Noting that none of the cases involves crimes against the state, the retired judges pointed out that if the sentences were commuted, the prisoners would still spend the rest of their lives behind bars, thus protecting social interests and upholding the rule of law.