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.