A Case Against Delay as a Ground for Commutation of Death Sentences
Zubin Dash & Shashank Singh
Volume 7 Issue 3-4 (2014)
With the pronouncement of the judgments in Triveniben v. State of Gujarat, Mahendra Nath Das v. Union of India and Shatrughan Chauhan v. Union of India, the Supreme Court has assumed to itself a ‘post-mercy rejection’ jurisdiction. Within the constitutional framework, on being awarded death penalty, convicts may, after exhausting certain judicial remedies, approach the President or the Governor, who are constitutionally empowered to grant pardons and reprieves. We argue that this right has often been abused by people who exercise it in the hope of delaying their execution and thereafter using such delay as a ground to seek commutation of their sentence. While the courts have taken note of this fact, they have chosen to rule in favour of the convicted persons whose mercy petitions have been rejected by the President. The convicts seek judicial recourse, in form of commutation of their death sentence, on the grounds there has been a delay in rejection of their clemency petition. We reason that the courts must accept certain inherent systemic features, which although cause delay, also prevent the failure of the constitutional machinery. The courts must consider intervention only in light of all the circumstances that lead to a fundamental change in circumstances since the original sentencing decision. The relevance of considering this fundamental change is that in the intervening period after the awarding of the sentence by the courts, the circumstances are now so different that had the judiciary been considering the case at the initial stage it would not have imposed the death penalty to begin with. This proposition, as laid down by the same Court in Triveniben case has over time been diluted. As is seen by the recent cases the judiciary has adopted a very convict-centric approach when considering commutation cases. To carve out an additional ground for clemency even after the convict has been awarded the death penalty by the judiciary and the executive has rejected their mercy petitions, is judicial overreach. In an attempt to conjure novel remedies for convicts from constitutional silences, the judiciary has completely turned a blind eye to justice for the victims, and society as a whole. In the process, it has in essence upset the constitutional scheme and assumed the power of granting mercy to convicts, which hitherto was the sole prerogative of the executive head.