Supreme Court moots guidelines to address delays in deciding mercy pleas, executing death penalty

The Supreme Court on Thursday expressed concern over the agonising effect that indefinite delays in the execution of a death sentence could have on a death row convict [State of Maharashtra v. Pradeep Yashwant Kokade and Others]..The Court observed that such delays are often likened to a sword hanging over one's head. "See a sword is hanging on your head till the time your death sentence is not executed. So that sword is on your head, could fall anytime," the Court observed.A three-judge Bench of Justices Abhay Oka, Ahsanuddin Amanullah and Augustine George Masih found that such delays are also attributable to the lack of clarity on the procedure a sessions court should follow in cases where a death penalty has been confirmed by a higher court but where a mercy petition has been filed by the convict. "Suppose sessions court immediately issues warrant after they got the writ from Supreme Court when every petition for the convict is dismissed. Suppose they issue warrant, despite mercy petition being pending. What procedure is there for sessions court to follow when mercy petition is pending?" the Court asked.To address this gap, the Court suggested framing guidelines to give complete effect to Sections 413 and 414 of the Criminal Procedure Code/ CrPC (and corresponding provisions under Sections 453 and 454 of the Bharatiya Nagarik Suraksha Sanhita/ BNSS), which deals with enforcement of death sentence orders by the sessions court..The top court was hearing a 2019 criminal appeal preferred by the Maharashtra government. The State had challenged the Bombay High Court's decision to commute the death sentence awarded to two men, Purushottam Borate and Pradeep Kokade, convicted for the rape and murder of a Pune BPO employee in 2007.The High Court commuted the sentence after noting that that the execution of the death penalty had been considerably delayed. The delay included around 1-2 years taken to process mercy petitions sent to the Governor by the convicts.Consequently, the High Court commuted the death sentence awarded to two convicts to life sentence, with a minimum of 35 years each to be actually served in prison..When the appeal was heard on September 5, the Supreme Court questioned the State on why it was insisting that the convicts be sent to the gallows despite the noticeable delays."For how long he was under fear of being hanged? Can we now send him to gallows? He is already been awarded fixed sentence of 35 years for an incident in 2007. What about Article 21 of these convicts? Governor pronounced his decision on mercy petition after 8 months of delay. What is the explanation there? There is something called Article 21 which is available to all. Even President took so much time to reject the pleas. Can we send them back to gallows now?" Justice Oka asked State..As the hearing progressed, it was noted that there may have been judicial delay in executing the death sentence in this case and not just administrative delay.This was after it was pointed out that the death row convicts remained uncertain of when their death sentence would be executed for years after their mercy petitions were rejected by the Governor.This delay was unconstitutional and violated their rights under Article 21 (life and personal liberty) of the Constitution, the convicts' counsel argued.The Court, in turn, noticed that a failure to proactively inform the sessions court of the rejection of the mercy petitions may have further delayed the execution of the death sentence."I am unable to understand why public prosecutor did not go directly to court and get warrants issued and show all the documents of rejection of mercy petition. Only letters were sent. What would have been the best way to do? It is for the prosecutor to go to court and get warrant," Justice Oka said..The Court noted that all these delays were not just violative of the rights of a convict, but also of the victims. It indicated the drawbacks of the system, the Court said. This led the Court to ponder on whether some guidelines should be put in place to ensure that there is no indefinite delay in the execution of death penalties. "Possibly now we have to lay down the procedure which will be about as to what the public prosecutor has to do when mercy petition of convict against death sentence are rejected. This cannot go like this. There has to be procedure as to how Prosecutor and court have to react," Justice Oka remarked. .The Bench added that the State should be proactive in approaching the sessions court for the execution of a death sentence once a mercy petition is rejected by the Governor. "As soon as Supreme Court confirms the death penalty, the State must check whether mercy petition is filed or not and in line with PUDR judgment and other judgment, convict can be told about his legal aid right and then sessions court can check whether mercy petition is pending or not. State has to be proactive in this. We need to lay down this procedure. State must apply. Then safeguard should be there as to whether mercy petition is pending or not," the Court observed..The Court eventually reserved its judgment in the matter.Advocate Shreeyash Lalit represented the State of Maharashtra. Advocate Payoshi Roy appeared for the convicts..[Read Live Coverage]