SC Doubts Good Behaviour Is Enough to Commute a Death Sentence, But Case Law Says Otherwise

On the very same day that one Supreme Court bench expressed these doubts, another ruled in the opposite direction.

On Thursday, a Supreme Court bench of Chief Justice of India S.A. Bobde and Justices S. Abdul Nazeer and Sanjiv Khanna reportedly observed that post-conviction “good behaviour” in jail may not be sufficient to modify a death sentence, as mitigating circumstances are taken into account by courts at the trial stage.

While the court was not against reformation, the punishment reflected societal expectations and the gravity of crime, the bench was quoted as saying. The bench also raised doubts about whether post-conviction mitigating circumstances could be grounds for commuting a death sentence.

The bench was hearing review petitions filed by Saleem and Shabnam, death-row convicts found guilty of killing seven members of a family in Amroha, Uttar Pradesh in 2008.

While the bench has reserved its order, the judges’ observations, as reported in the media, are inconsistent with settled law.

On January 21, 2014, a three-judge bench of the Supreme Court, comprising then Chief Justice of India P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh, in Shatrughan Chauhan vs Union of India examined “supervening” circumstances of each of the 15 death-row convicts before it to arrive at a coherent decision. All 15 convicts had challenged the executive orders rejecting their mercy petitions because the supervening events, which were crucial for the decision, were ignored.

The legal basis for taking supervening circumstances into account is that the Supreme Court must protect every prisoner’s rights under Article 21 till their last breath.

Also read: Can a Curative Petition Keep the Nirbhaya Convicts From the Noose?

The petitioners before the court claimed five supervening factors – delay, insanity, solitary confinement, judgments declared per incuriam and procedural lapses. Agreeing with the petitioners, the bench held that the concept of supervening events emerged from the jurisprudence set out in the Vatheeswaran and Triveniben cases. The word ‘judicial review’ is not even mentioned in these judgments and the death sentences have been commuted purely on the basis of supervening events such as delay, the bench pointed out.

“Under the ground of supervening events, when Article 21 is held to be violated, it is not a question of judicial review but of protection of fundamental rights and courts give substantial relief not merely procedural protection,” the bench added.

The bench even reconsidered the court’s previous verdict in Devender Pal Singh Bhullar vs State (NCT) of Delhi (2013) in which it was held that when the accused were convicted for terrorism, there was no question of showing any sympathy or considering supervening circumstances for sentence commutation. Persuaded by the late legal luminary Ram Jethmalani, the bench declared that its decision in Bhullar is per incuriam and is not a binding decision for other cases.

The bench accepted Jethmalani’s contention that in the light of the ratio enunciated in Triveniben (delivered by a constitution bench in 1980), an unexplained delay is one of the grounds for commuting a death sentence to life imprisonment. This supervening circumstance is applicable to all types of cases including the offences under Terrorist and Disruptive Activities (Prevention) Act, Jethmalani had argued.

After reviewing state prison manuals and directions of the United Nations international conventions of which India is a party, the bench categorically held that insanity, mental illness or schizophrenia are crucial supervening circumstances which should be considered by the Supreme Court in deciding whether a death sentence can be commuted to life imprisonment.

The bench was categorical that even after president’s rejection of a mercy petition, the convict can approach a writ court for commutation of death sentence on the grounds of supervening events, if available, and legal aid should be provided to the convict at all stages. “Accordingly, Superintendents of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts,” the bench had ruled.

In Shatrughan Chauhan, the bench made it clear that like the death sentence is passed lawfully, the execution of the sentence must also be in consonance with the constitutional mandate and not in violation of the constitutional principles.

Contrary to what the Centre has claimed in a recent application filed before the Supreme Court, the Shatrughan Chauhan bench had held that right to seek mercy under Articles 72 and 161 of the constitution is a constitutional right, and not at the discretion of the executive’s whims. “Every Constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values,” the bench had reasoned.

Inside the Supreme Court of India. Photo: Wikimedia Commons (CC BY-SA 4.0)

In contrast to what the CJI Bobde-led bench observed on Thursday, the Shatrughan Chauhan bench had held that “retribution has no Constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same.”

More importantly, the list of supervening factors which the Shatrughan Chauhan bench had approved as mitigating factors in favour of commutating a death sentence in 2014 is not exhaustive. Therefore, the question of ‘reformation of the convict’ during their incarceration as a supervening mitigating factor clearly has the approval of the Shatrughan Chauhan bench, and is binding on the CJI Bobde-led bench as well.

A different case – and a different decision

Ironically, another bench of the Supreme Court, on Thursday, answered the CJI’s concerns in The Home Secretary (Prison) & Ors vs H. Nilofer Nisha. The bench, comprising Justices S. Abdul Nazeer and Deepak Gupta, found the “supervening factor” of acquiring educational qualifications during one’s imprisonment mitigating enough to direct his release under Article 142 of the constitution.

In this case, the Tamil Nadu government rejected the claims of certain convicts sentenced to life imprisonment for early release from prison under the scheme announced on the occasion of the birth centenary of former Tamil Nadu chief minister M.G.Ramachandran. The Madras high court accepted the habeas corpus pleas filed on behalf of the prisoners, and directed their release. The state government appealed this order in the Supreme Court.

The Supreme Court, while agreeing with the state government that the high court’s order was erroneous, however, reviewed the case of each of the respondent prisoners undergoing life imprisonment, and found their pleas for early release meriting favourable consideration under Article 142 of the constitution.

The grounds for such consideration are that the convicts had acquired various educational qualifications during their long imprisonment. “This young man who may have committed a heinous crime, has obtained various degrees including Masters in Computer Application, Masters of Business Administration, Master Degree in Criminology & Criminal Justice Administration and M.A. in Journalism and Mass Communication and various other Vocational Diplomas.  The learning which he has obtained in jail must be put to use outside.  The jail record shows that his behaviour in jail has been satisfactory.  The only ground against him is that he had murdered a person from another community…. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigation,” the bench reasoned in the case of one convict, while ordering his premature release from prison.

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The Justice Abdul Nazeer-Deepak Gupta bench, invoking reformation as a supervening factor, directed the release of four other prisoners and consideration by the competent authority of representation of one detenu within six weeks.  In case the state rejects the plea of the detenu, a reasoned order has to be passed. In that eventuality, the detenu shall be at liberty to challenge the order before the high court, the bench made clear in its judgment.

If the Abdul Nazeer-Deepak Gupta bench found earning an educational qualifications during imprisonment as a relevant supervening factor meriting a prisoner’s early release from life imprisonment, how could a similar factor suggesting reformation of the convict not be considered while deciding on a death sentence commutation?

Justice Nazeer, who was part of the CJI-led bench as well as the one which delivered the judgment in H. Nilofer Nisha, could perhaps provide an answer. Clearly, the death penalty by itself could not deprive the prisoner of the advantage of a mitigating principle, if the same is found relevant in the case of a life convict.