A Reprieve for Two Death-Row Convicts, But a Milestone in the Legal Struggle

Death row convicts deserve dignity, too. Credit: Amnesty

Death row convicts deserve dignity, too. Credit: Amnesty

The Supreme Court Vacation Bench’s judgment in Shabnam vs Union of India, delivered on May 27 is a huge success for those championing the rights of death-row convicts for justice and dignity.

The Court quashed the death warrants issued in haste by the Sessions Judge, Amroha district, Uttar Pradesh, on May 21 to execute convicts, Shabnam and Saleem, whose death sentences were confirmed by the Supreme Court only on May 15.  While doing so, the Court recognised the right of death-row convicts, under Article 21 of the Constitution, to exhaust all legal remedies available to them, and to die with dignity.

It is not just the Court’s 18-page judgment, uploaded recently on the Court’s website, which is of significance to the struggle of death-row convicts and their counsel for a more humane jurisprudence to mitigate their suffering, while waiting for the gallows.

The story of how the counsel for the convicts won the reprieve from the Court, and the unexpected disclosure by the Ministry of Home Affairs of a mysterious ‘instructions’ to handle mercy petitions  should both be eye-openers to the challenges ahead while defending the right to life and liberty of those condemned to death by a process mostly considered unjust and unfair.

Shabnam and Saleem are lodged at Moradabad and Agra jails respectively, following their conviction and sentence for the murders of seven members of Shabnam’s family in 2008.

After it became evident at the end of the oral hearing in the case on 29th April 2015 that the Supreme Court would uphold the death sentences for Shabnam and Saleem, the volunteers of the Death Penalty Litigation Clinic of the National Law University visited them at the Moradabad and Agra jails on 7th and 20th May respectively for getting their signatures on the vakalatnama, to file the review petitions following the Supreme Court’s dismissal of their appeals against their death sentences.

Chance discovery of news

On their return to New Delhi, they were shocked to know that the Sessions Judge at Amroha had issued their death warrants.  The news about the issue of death warrants were only published in some local Hindi newspapers, monitored by a volunteer at the Clinic regularly for news on death penalty.  But for the chance discovery of the news item by this volunteer, the officials of the Clinic would never have known about the issue of warrant, and the omission could have proved costly for the two.

While the volunteer of the clinic must be congratulated for her diligence, concerns remain about the consequences if the Hindi journalist did not report the matter, or the newspapers concerned did not publish it for professional reasons like lack of space etc.

The question being asked by Shreya Rastogi, Associate at the Death Penalty Litigation Clinic at NLU Delhi is why the authorities present at Moradabad and Agra jails did not inform the convicts or their lawyers when representatives of the Clinic had given them a detailed briefing during their visit.

On the morning of May 22, the senior counsel for Shabnam, Anand Grover, and the senior counsel for the Clinic, which filed another petition on behalf of Saleem, Raju Ramachandran, brought this to the attention of the Vacation Bench of the Supreme Court, and sought its immediate stay of the warrants, and their challenge to them.  A concerned Supreme Court immediately obliged the petitioners.

More surprises

On May 27, when the Court took up the petitions for a detailed hearing, further surprise was in store.  The counsel, for the Union of India, Pinky Anand, disclosed to the Court of the existence of an advisory, issued by the Ministry of Home Affairs that the Jail Superintendent must inform the death-row convicts soon after the dismissal of their appeals by the Supreme Court, that they could file mercy petitions, if they want, within one week.  The MHA assumed that the expiry of this deadline, without the convicts sending the mercy petitions, would be a licence to the issue of death warrants.

Pinky Anand admitted, however, that this advisory is a routine one, and amended from time to time; therefore, she suggested that compliance with it is not mandatory. Despite her claim, however, the MHA’s website does not show this advisory at all, leaving many wondering whether the MHA does not want it to become public.

That the MHA, after the new Government came to power last June, has exposed gross ignorance of Constitutional position with regard to filing of mercy petitions by issuing such an advisory, is a matter of concern.

Mercy petitions are generally filed after the dismissal of the review petitions by the Supreme Court, though the reversal of this sequence by a convict is not irregular. While a convict has 30 days to file a review petition, after the dismissal of his or appeal by the Supreme Court, delays in filing the review petition, on the ground of lack of awareness on the part of the convict, are generally condoned by the Supreme Court.

Fortunately, the Supreme Court in the May 27 decision in Shabnam has only said that reasonable time must be given to the convicts to file mercy petitions, before the Governor or/and the President.

More significant, the Supreme Court has now made it mandatory for the authorities to follow the guidelines laid down by the Supreme Court in Shatrughan Chauhan vs Union of India, and by the Allahabad High Court in the PUDR vs Union of India, (PIL 57810/2014 dated 28.1.15) which ensure necessary safeguards to be followed in the treatment of death-row prisoners before and after the issue of death warrants, so as to protect their right to life, liberty and dignity.

Rarely, the Supreme Court gives its stamp of approval to a High Court judgment, without being appealed to. Therefore, Supreme Court’s endorsement of the Allahabad High Court judgment in the PUDR case is considered as the most sensible decision in the death penalty jurisprudence.

The  decision in Shabnam can be seen as a part of a continuous process by the Supreme Court to reform the administration of the death penalty – starting with Shatrughan Chauhan, then Mohd. Arif and now Shabnam.

It is interesting that while the Court’s substantive discourse on the `rarest of rare doctrine’, evolved in Bachan Singh v. State of Punjab, way back in 1980, lies in shambles, its procedural reform of the death penalty seems to be far ahead compared to other retentionist countries.

The Wire acknowledges with thanks the inputs given by the Death Penalty Litigation Clinic, NLU Delhi, for this story.