Yesterday, On 5th September, The Supreme Court proposed guidelines to address delays in ruling on mercy pleas and carrying out death penalty executions. The discussion arose during a 2019 criminal appeal by the Maharashtra government, challenging the commutation of death sentences for the convicts in the 2007 Pune BPO employee rape and murder case.
New Delhi: The Supreme Court on Thursday expressed concern over the distress caused by indefinite delays in carrying out death sentences for convicts on death row.
The Court remarked that such delays are often compared to the experience of living under the constant threat of a sword.
The Court observed,
“See, a sword is hanging over your head until your death sentence is executed. That sword is on your head and could fall at any time,”
A three-judge bench consisting of Justices Abhay Oka, Ahsanuddin Amanullah, and Augustine George Masih noted that these delays are often due to a lack of clear procedure for sessions courts to follow when a death sentence is confirmed by a higher court but a mercy petition is still pending.
The Court raised the question,
“Suppose the sessions court immediately issues a warrant after receiving the writ from the Supreme Court, dismissing all petitions for the convict. What happens if the warrant is issued while a mercy petition is still pending? What procedure should the sessions court follow in such a scenario?”
To address this procedural gap, the Court proposed the need to frame guidelines that would fully implement Sections 413 and 414 of the Criminal Procedure Code (CrPC), as well as Sections 453 and 454 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which govern the enforcement of death penalty orders by the sessions court.
The Supreme Court was reviewing a 2019 criminal appeal filed by the Maharashtra government, which contested the Bombay High Court’s decision to commute the death sentences of Purushottam Borate and Pradeep Kokade. The two men were convicted for the 2007 rape and murder of a Pune BPO employee.
The High Court reduced their death sentences to life imprisonment, citing significant delays in the execution process, including a 1-2 year delay in processing their mercy petitions by the Governor. As a result, their sentences commuted to life imprisonment with the requirement that they serve a minimum of 35 years in prison.
During the hearing on September 5, the Supreme Court questioned the State’s insistence on carrying out the death penalty despite the substantial delays involved in the case.
Justice Abhay Oka raised critical concerns during the hearing, asking,
“For how long was he under the fear of being hanged? Can we now send him to the gallows? He has already been given a fixed sentence of 35 years for an incident that occurred in 2007. What about Article 21 for these convicts? The Governor took 8 months to decide on the mercy petition. What’s the explanation for that? Article 21 applies to everyone, even the President took a considerable time to reject the plea. Can we send them back to the gallows now?”
As the case proceeded, it became evident that the delay in executing the death sentence was likely due to judicial inaction, not just administrative delays. The convicts remained in limbo for years after their mercy petitions were rejected, creating uncertainty about when their sentences would be carried out.
This delay, argued the convicts’ counsel, was unconstitutional and a violation of their rights under Article 21, which guarantees life and personal liberty.
The Court further noted that the lack of proactive communication with the sessions court regarding the rejection of the mercy petitions may have contributed to the delay.
Justice Oka questioned,
“I am unable to understand why the public prosecutor didn’t go directly to court, get warrants issued, and present the documents showing the rejection of the mercy petition. Letters alone were sent. What would have been the best course of action? It was for the prosecutor to approach the court and get the warrant.”
The Court pointed out that such delays not only violated the rights of the convicts but also affected the victims.
This highlighted the systemic flaws, prompting the Court to consider the need for clear guidelines to prevent indefinite delays in executing death sentences.
Justice Oka suggested,
“We possibly need to establish a procedure for what the public prosecutor should do when a convict’s mercy petition is rejected. This can’t continue like this. There must be a defined process for how the prosecutor and the court should respond.”
The Bench also emphasized the State’s responsibility to act promptly after a mercy petition is denied, stating,
“As soon as the Supreme Court confirms a death sentence, the State must check if a mercy petition has been filed. In line with the PUDR judgment, the convict should be informed of their legal aid rights, and the sessions court must verify the status of the petition. The State must be proactive. We need to establish this procedure.”
The Court then reserved its judgment on the matter. Advocate Shreeyash Lalit represented the State of Maharashtra, while Advocate Payoshi Roy appeared on behalf of the convicts.