The condemned prisoners also have a right to dignity and execution of death sentence cannot be carried out in an arbitrary, hurried and secret manner without allowing the convicts to exhaust all legal remedies.
Petitioners, convicted in the present matter were co-accused in a murder case. They were held guilty of committing the murders and death sentence was pronounced. The sentence was confirmed by the High Court and later the Supreme Court also dismissed the appeals filed by them against the order of High Court confirming death sentence.
The present writ petitions were filed on the allegations that on the relevant date when death warrants were issued by the learned Sessions Judge six days after the dismissal of the appeals by the Supreme Court, they still had remedies open and to be exercised by them. In the present case the Supreme Court had pronounced the judgment on 15.05.2015 confirming the death penalty and within six days of the dismissal of the criminal appeals filed by the convicts, the Sessions Judge issued the death warrants on 21.05.2015. This was held to be clearly impermissible and unwarranted for following reasons:
- The convicts have not exhausted their judicial and administrative remedies, which are still open to them even if their appeals in the highest Court have failed affirming the imposition of death penalty. Those appeals were filed via the route of Article 136 of the Constitution. However, law gives such persons another chance, namely, to seek review of the orders so passed, by means of filing of review petition. It is provided under Article 137 of the Constitution. The limitation of 30 days is prescribed for filing such review petitions. In case of convicts facing death penalty, the remedy of review has been given high procedural sanctity.
The review petition in case of death sentence shall be heard in the open court by giving an opportunity to the review petitioner to make oral submissions, unlike other review petitions which are decided by the Court by circulation in Chambers and such a review petition is to be heard by a Bench consisting of minimum three Judges. The right to file Review Petition is a valuable right given to the convicts on whom death penalty has been imposed.
- That apart, right to file mercy petitions to the Governor of the State as well as to the President of India also remains intact. This remedy is a constitutional remedy as Executive Head is empowered to pardon the death sentence (under Article 161 and 72 respectively). It is also of substance and not mere formality and power to pardon is a part of the constitutional scheme reposed by the people through the Constitution in the Head of the State, and enjoys high status. In exercise of their powers, the President or the Governor, as the case may be, may examine the evidence afresh and this exercise of power is clearly independent of the judiciary. While exercising such a power, the Executive is not sitting as a Court of Appeal, rather power to grant remission of sentence is an act of grace, humanity in appropriate cases, i.e. distinct, absolute and unfettered in nature. Clemency procedure under Articles 72/161 of the Constitution provides a ray of hope to the condemned prisoners and his family members for commutation of death sentence into life imprisonment. In a given case it would however be for the convict to make out a justifiable case for remission of death sentence. This constitutional remedy provided to the convicts of death sentence, cannot be snatched by executing the death sentence before even giving such convicts a chance or opportunity to avail the same. State has to wait for reasonable period, even after such convicts fail in the review petition, if they so file.
- Article 21 of the Constitution lays down that nobody shall be deprived of his life and liberty except according to the procedure established by law. The procedure established by law has to be ‘due procedure’. It must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive. Even as per the statute book, this procedure does not culminate with the dismissal of appeals of the convicts by the final Court. No doubt, when an accused is tried of an offence by a competent court of law and is imposed such death penalty and the said death penalty is upheld by the highest Court, the procedure that is established by law has been followed up to this stage. Therefore, till the time limitation period for filing the review petition and thereafter reasonable time for filing the mercy petition has not lapsed, issuing of death warrants would be violative of Article 21.
- Article 21 has its traces in the dignity of human being. It has been recognized as part of Article 21 of the Constitution. The process/procedure from confirmation of death sentence by the highest Court till the execution of the said sentence, the convict is to be treated with human dignity to the extent which is reasonable and permissible in law. This right to human dignity has many elements. Human dignity is the dignity of each human being ‘as a human being’. Another element is that human dignity is infringed if a person’s life, physical or mental welfare is armed. It is in this sense torture, humiliation, forced labour, etc. all infringe on human dignity. It is in this context many rights of the accused derive from his dignity as a human being. These may include the presumption that every person is innocent until proven guilty; the right of the accused to a fair trial as well as speedy trial; right of legal aid, all form part of human dignity. Even after conviction, when a person is spending prison life, allowing humane conditions in jail is part of human dignity.
If death sentence is to be awarded, it has to be in accordance with due dignity.
There is fourfold test to be satisfied in the execution of death penalty which are:
- The act of execution should be as quick and simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner’s apprehension.
- The act of the execution should produce immediate unconsciousness passing quickly into the death.
- It should be decent.
- It should not involve mutilation.
Thus, the condemned prisoners also have a right to dignity and execution of death sentence cannot be carried out in an arbitrary, hurried and secret manner without allowing the convicts to exhaust all legal remedies.
In the instant case, since the death warrants were signed by the Sessions Judge in haste, without waiting for the exhaustion of the aforesaid remedies on the part of the convicts, the same were quashed and set aside.
[Shabnam vs. Union of India]
W.P. (Criminal) No. 88 of 2015