The death penalty has been a subject of debate for a long time now. While opinions differ as to the imposition of the death penalty as a form of punishment altogether; India remains one of the few countries that still impose death penalty – limiting it however, to rarest of rare offences.

Once executed, there is no going back from the punishment in case of error. This is primarily the reason for providing multiple safeguards at various levels when death penalty is imposed. However, discontent arises when the safeguards cause inordinate delay in providing justice.

It becomes a matter of concern when it takes 8 long years for criminal proceedings to take their course, as seen in the 2012 Delhi gang rape case (Nirbhaya case). It takes even more years in various other cases. Speedy justice and quick action are thus required even for death row offences.

The law relating to death row convicts as of now emanates from the Apex Court’s judgments in cases such as Shatrughan Chauhan v. Union of India and Epuru Sudhakar v. Government of AP. While Epuru Sudhakar provides the Supreme Court with limited powers to review mercy petitions rejected by the President, Shatrughan Chauhan lays down guidelines to protect the right to life and personal liberty of death-row prisoners, as enshrined under Article 21 of the Constitution.

In order to ensure just, fair, and reasonable procedure, (Maneka Gandhi judgment) legal aid, written communication of rejection of mercy petition to the convict and their families, physical and mental health evaluation, minimum 14-day notice prior to execution, the opportunity for family members to meet them and compulsory post mortem report post-execution is to be provided to death row convicts.

The inordinate delay in the execution of the death penalty has often been a cause of concern to people at large in various high-profile cases such as that of Mumbai terror attack convict Ajmal Kasab, Parliament blast convict Afzal Guru, and most recently, in the 2012 Delhi rape case.

The delay in hanging the three convicts facing death penalty in the 2012 rape case has led the Central government to challenge the guidelines laid down by the Apex Court in the Shatrughan Chauhan case. The significance of the case stems not only from its legal implications, but also from its massive socio-political impact.

Civil rights activists, political parties, and the general masses have long demanded stringent actions against sexual offenders involved in heinous crime of rape. In these circumstances, the delay in executing the death penalty of gang rape convicts comes with heavy political cost.

The petition filed by the Centre seeks to limit the time provided for filing curative petition by the convict, curtail notice period to convict and his/her family from 14 days to 7 days, and impose a time limit on the procedure to be followed in case of multiple convicts facing death penalty. The petition provides the Supreme Court with a golden opportunity to strike a balance between the rights of accused and the rights of a victim to seek justice.

The first clarification sought in the petition is regarding the time limit within which a death row convict should file a curative petition, if he chooses to. The concept of curative petition can be traced back to the Apex Court’s Constitution Bench judgment in Rupa Ashok Hurra v. Ashok Hurra. The power, however, is to be exercised only in rarest of the rare cases.

Curative petition is the last constitutional remedy a person can avail once his review petition has been rejected by the Supreme Court. However, no time limit has been fixed within which a curative petition should be filed. A clarification on this aspect shall not only help the State in its swift execution of the punishment, but shall also help convicts in availing an available remedy in a time-bound manner.

As seen in the Nirbhaya case, convicts continue to file curative petitions post issuance of death warrants. This creates inordinate delay in the justice system and also works towards wastage of state resources. A time-bound filing of curative petition shall help in preventing unnecessary delays and increase executive and judicial efficiency.

Hence, it would be welcome to see the Hon’ble court take a step in this direction by making curative petitions time bound. In fact, it should be ensured that curative petitions remain time bound not in cases of death penalty, as sought in the petition at hand; but a time limit is extended to curative petitions in general to make sure speedy delivery of justice.

Second, the petition seeks to limit the time gap from date of communication of rejection of mercy petition to the date of execution from 14 days to 7 days. The reason for providing such time period is more based in morality than legality.

Compassion dictates that a death row convict should be allowed time to mentally prepare for the impending punishment, and to have a final meeting with his/her family members, considering that they could have to travel from remote locations. It also has legal implications such as providing time to make a will and to avail any remaining judicial remedy. Though limiting the time period could work towards speedy execution of death penalty; it would not serve the interest of justice.

Justice to the accused/convict is as important as justice to the victim. Curtailment of time period might lead to situations where the death row convict is unable to exercise the rights otherwise provided to him and that shall amount to violation of just, fair and reasonable requirement under Article 21 of the Indian Constitution.

In case the Hon’ble Court feels that the time limit needs to be further limited, it should be made the duty of the State to ensure that the convict is able to meet his family for a last time, and is informed about and assisted in availing remaining remedies. The limitation shall, however, defeat the entire purpose of providing a time gap between rejection of mercy petition and execution.

Last, the petition seeks that in cases having multiple death row convicts, execution of penalty of a convict who has exhausted legal remedies should not be delayed merely because any of the co-convicts has initiated pardon proceedings. It is urged that the Apex Court mandate issuance of execution warrant by competent Court within seven days of rejection of mercy petition and execution of death sentence within seven days thereafter.

As on date, legal practice is that if one of the convicts has moved a mercy petition, or a review petition or a curative petition, the death penalty of any his co-convicts shall not be executed until a decision has been taken on such petition. It is argued that death row convicts prolong execution by exercising their legal remedies one after another. As the law provides for a 14-day period between date of rejection of petition and execution of penalty, it gives ample time to another co-convict to move forward with his mercy petition, thus delaying execution. This can be seen from the Delhi rape case, where due to pendency of petitions, death penalty of even those convicts who have exhausted all legal remedies could not be executed.

However, the demand for segregated execution comes with its own set of problems. The case of Harbans Singh v UOI is a perfect illustration of the situation, where three people were awarded death sentence in a murder case. The three convicts filed mercy petitions at different stages, and proceeded with legal remedies separately. Out of the three, death penalty of one of the convicts was commuted to life sentence, which was later used by another convict as argument to get his sentence commuted.

However, the third convict who did not file a review petition had already been hanged. The Apex Court writing through Justice YV Chandrachud expressed deep regret on the matter, calling the situation unfortunate.

Convicts of the same offence having participated in it with the same magnitude cannot be treated differently, unless special circumstances exist. A situation where one person faces death for his offence, while the other is commuted or pardoned, is in itself a defeat of the entire justice system. It is to prevent a similar situation from occurring that the execution of all co-convicts is stayed if decision on any one’s petition is pending.

Keeping the fundamental constitutional values of life, liberty and equality in mind, the Supreme Court should not proceed with the third modification sought in the petition. The Court should ensure that if any execution is to be carried out then it should be done only after the convict has availed of all the judicial remedies that were available to him.

The issue of delay can be minimized by effectively fixing time limits on filing of mercy petitions, disposals of such petitions, and the consequent legal remedies in case of rejection. Strict adherence to time limits would help in increasing efficiency of the judicial process, without compromising the available legal remedies to convicts. It is true that justice delayed is justice denied; but more importantly, justice hurried is no justice at all.

Hence, the Court should endeavour to strike an optimum balance between delay in execution of death penalty and the rights of the death row convicts. It would be exceedingly unfortunate if rights were compromised solely to decrease delay. Instead, better management is required to avoid delay while simultaneously preserving fundamental rights.

The authors are research scholars (Law) at IIT Kharagpur. They have completed their LL.M from South Asian University, New Delhi.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.