When the ghastly Nithari killings hit the headlines in December 2006, the country was horrified. The killer had lured at least nineteen slum children, raped them and devoured their body parts, then chopped up and threw the bodies into a drain. The CBI court handed the death sentence to accused Surinder Koli,which in turn was confirmed by the Allahabad High Court and then by the Supreme Court. Koli thereafter filed a mercy petition before the UP Governor in May 2011, which was rejected 23 months later. Then the Union Home Ministry forwarded it to the President who took 12 months to turn it down. Koli was to hang sometimes in September 2014 when his luck changed suddenly, thanks to the ‘inordite delay’ in deciding his mercy petition. On this ground, the Allahabad High Court has now held that Koli’s death sentence will be ‘unconstitutiol’, thereby commuting it to life imprisonment. Understandably there is much dismay throughout the country over this turn of affairs, and the families of the tender–aged victims are inconsolable. In Assam though, the fil outcome of the Nithari case simply creates a sense of deja vu. There was similar heartburn when the Supreme Court commuted to life term the death sentence awarded to Mahendra th Das, whose mercy petition was rejected by the President after a 12–year delay. Das was convicted for killing two persons gruesomely, beheading the second one when he was out on bail for the first offence. While giving him reprieve, the apex court took a serious view of the casual manner in which mercy petitions by convicts in death row are dealt with. It transpired during the hearings that former President APJ Abdul Kalam had in 2005 favoured commuting Das’s death pelty to life term, but strangely that note was never placed before his successor Pratibha Patil, who rejected Das’s mercy plea in 2011.
As long as the death pelty remains the strictest punishment, families of victims do not get a sense of closure when it is commuted to life term due to delay over mercy petitions. There is a strong sense of helpless bewilderment, of justice being denied not only for lengthy court proceedings, but for the delay in Executive pardons coming as the last straw. How overburdened the country’s justice delivery system is can be gauged from the fact that over three crore cases are pending in the Supreme Court, 24 High Courts and lower courts combined. Several High Courts have taken initiatives to bring down pendency of cases, which the Law Ministry is actively encouraging. Some of these innovative practices include setting up fast track courts and Lok Adalats, mandatory prior notice in civil cases for speedy trials, instituting pre–trial proceedings to rrow down the specific issues of a case, keeping aside a special day in the week to dispose off older cases, adopting a case flow magement system and regular assessment and monitoring of court performances. In the backdrop of this continuing logjam comes the issue of capital punishment. Observers have noted that courts in India are increasingly reluctant to hand down death sentences. Not only must judges give ‘special reasons’ for awarding death sentences, they also have to do so for the ‘rarest of rare’ cases as laid down by the Supreme Court. According to government figures, only 54 persons have been executed since Independence. In the last 19 years, there have been three hangings of which two were of Ajmal Kasab and Afjal Guru, convicted of high–profile terrorist attacks. So is India moving towards abolishing the death pelty? The Law Commission has begun reviewing this issue, seeking facts from the courts and views from the public.
If the death pelty is filly abolished in India, it will bring relief for some 400 prisoners on death row in jails around the country. But in the meantime, the indecision of the Executive over considering mercy petitions has drawn sharp criticism from the Judiciary. The Constitution grants the President the power to pardon or reduce punishment under Article 72, and similar powers to the Governors of states under Article 161. Since both the President and Governor are bound by the advice of their respective councils of ministers, so the exercise of the power to pardon is of Executive character. Soon after Prab Mukherjee assumed office as President, several former judges sought his intervention to commute the death sentences of 13 convicts, because they had been erroneously sentenced to death according to the Supreme Court’s own admission. This strikingly illustrates the reason why countries provide for Executive clemency — to give relief from undue severity or mistake in the enforcement of crimil law. But should there not be a time frame for the exercise of this power? This is an issue of much debate, though the Supreme Court has observed that delay by the President in deciding over mercy petitions, causes avoidable mental agony and suffering to the convict. In fact, such delays can cause unseemly politicking as shown in the Rajiv Gandhi assassition case. After the Supreme Court commuted the death pelty of three killers to life term, citing the 11–year delay by the President in deciding their mercy pleas, there was a near showdown between the Centre and Tamil du government when the then Chief Minister Jayalalitha tried to release them. Such controversies need to be avoided at all costs.