New Delhi: Death row convicts are beginning to explore new legal grounds – made possible by the Supreme Court in a recent judgment – to convince courts to commute their sentences to life imprisonment. And they are being successful.
On May 21, the Division Bench of Delhi High Court Division Bench heard a writ petition filed by a condemned man in Raipur Central Jail challenging the rejection of his mercy petition by the President. What is unusual about the matter is that the convict, Sonu Sardar approached the High Court after a three-judge bench of the Supreme Court recently dismissed his petition without stating any reasons.
The Delhi High Court accepted its jurisdiction because the petitioner argued that the cause of action arose partly in Delhi with the dismissal of his petition by the President because the relevant authorities never bothered to submit the full records of his case to the President’s secretariat in the run-up to the rejection of his plea for clemency.
This is, however, not the first time a High Court has stepped in to re-examine a death sentence by invoking grounds recently suggested by the Supreme Court.
On April 21, the Punjab and Haryana High Court commuted the death sentence of Dharam Pal to life sentence due to the unexplained and inordinate delay of 13 years and five months in the disposal of his mercy petition by the President.
Dharam Pal was also successful in convincing the High Court that his solitary confinement all these years constituted additional and unreasonable punishment, impermissible under the law.
More significant, the court concluded that non-disclosure of his acquittal in a rape case to the President by the authorities was a relevant factor which went in Dharam Pal’s favour. The courts – from the trial stage to the SC – sentenced him to death because he was found guilty of murder, which was allegedly due to his involvement in the rape case.
Dharam Pal’s brother, who was also found guilty in the same murder case, was not sentenced to death because he was not involved in the rape case.
In the Sonu Sardar case, his lawyers appear to be adopting the same legal strategy, successfully used by Dharam Pal’s counsel.
The Delhi High Court stayed his execution when his counsel sought relief on the grounds of delay in considering his mercy petition by the President, violation of procedural guidelines in his solitary confinement, and in the processing of his mercy petition by the President’s Secretariat. These grounds were not raised in the review petition which was earlier dismissed by the Supreme Court.
Sardar’s counsel, Yug Mohit Chaudhry, told the High Court that 800 days had elapsed between the day his client filed his mercy petition and the day the rejection was communicated to him. In Shatrughan Chauhan vs Union of India, the Supreme Court had held that an inordinate delay in the disposal of a mercy petition submitted by a death-row convict – if unexplained by the executive – could constitute grounds for commuting the death sentence to life imprisonment.
The second ground for seeking commutation was Sardar’s solitary confinement even before the confirmation of his death sentence by the High Court. In Sunil Batra vs Delhi Administration, the Supreme Court had held that a prison setting does not imply “a long holiday for human rights of convicts in confinement”, and had declared solitary confinement to be illegal.
Chhattisgarh’s counsel, however, sought to make a distinction between solitary confinement and imprisonment in a single cell. The court has issued notice to the state asking it to explain this distinction, and between a room and barrack, in the next hearing of the case.
The third issue which Sardar’s counsel raised was procedural impropriety. As per Central government rules and the Jail Manual for Madhya Pradesh/Chhattisgarh (where Sardar is incarcerated), it is incumbent upon the state government to provide the entire trial court records as well as the police diary – even an English translation, if available – to allow the President to fully apply his mind to the merits of the mercy petition.
In this case, however, the affidavit of the Union of India itself states that it did not receive the trial court records nor the police diary despite asking for these repeatedly. Sardar’s lawyer argued, therefore, that the absence of these materials has vitiated the entire process.
When the Union of India tried to argue that these rules were only discretionary in nature and lacked statutory status, Chaudhry drew the court’s attention to Shatrughan Chauhan judgment, which had rendered these rules mandatory.
Strikingly, Sardar’s mercy petition has been processed under rules applicable to remission of sentences, considerations for which are entirely distinct from the considerations that would apply to commutation of death sentence.
The Court then asked the UOI counsel to explain whether the rules, as per Shatrughan Chauhan, should require that the entire trial court record be sent to the President’s secretariat.
The court has posted the case for further hearing on July 9.