Saturday, April 11, 2009

Chidambaram's significant statement on Death Penalty: Are we in for de facto abolition?

[The Home Minister, P.Chidambaram's statement hinting at 'whole life' sentences as alternative to death penalty opens up several possibilities. Bikram, a researcher on death penalty issues, discusses some of these in this post]

By Guest Blogger: Bikram Jeet Batra

Although there have been the odd references to 'whole life' sentences even before the past decade, the first time it was actually imposed by the Supreme Court was in Subhash Chander [(2001) 4 SCC 458] by Justices K.T. Thomas & R.P. Sethi. Subsequently a number of judgments of the Supreme Court included similar directions that the executive would not have the power to remit or commute the sentence in that particular case. The constitutionality of such a restriction on executive powers has, however, been challenged by a review petition in one such case – this is presently being heard in the Supreme Court.

On its part, the UPA Government too has shown interest in ‘whole life’ sentences in the past. There were murmurs (probably selective leaks) in 2005 of MHA proposals to introduce ‘whole life’ as a replacement for the death penalty. See here for a discussion around that time. When the death sentence of Kheraj Ram was commuted by the President in 2006, the MHA ensured that he would serve a ‘whole life’ sentence. Chidambaram's reference is however the first high-level confirmation that such a proposal is being seriously considered by the Government and also that the proposal includes abolishing the death penalty. The Supreme Court’s Swami Shraddhananda judgment (2008) too envisages a similar eventuality (although it doesn’t refer to abolition).

I believe the Government is well aware of the fact that delay in disposal will eventually lead to commutation by the Supreme Court and is in fact hoping (planning?) for such an eventuality – they can then take cover behind the Court! Here’s what I think is likely to happen. Sooner or later some of the prisoners on death row will plead ‘delay-Triveniben-unconstitutionality’ in a writ in the Supreme Court. The Court will commute the sentences but recommend/direct (depending on how the ongoing constitutionality challenge in the SC goes) that the prisoner serve a ‘whole life’ sentence. Given that the Government has already stated in Parliament that mercy petitions take 6-7 years to process, this will mean the de-facto end of the death penalty in India. If the Supreme Court was to go the whole hog and abolish capital punishment given this context (highly unlikely) it would be ideal for the UPA government. If the court throws in sufficiently strong statements and obiters and the political environment is conducive, the Government may even be tempted to abolish through legislation. If not, then DP will remain in the statute books till the Congress has the numerical strength to deal with the domestic implications of abolition.

A couple of things to consider though: what happens if Justice Pasayat or other judge(s) with similar views on the death penalty sit on the bench in the first ‘delay-Triveniben’ petition? They’re unlikely to play ball with the above and it could arguably lead to the Supreme Court laying down a time-limit for disposals. This wasn’t done in the 1980s but the Supreme Court of that time was far more cautious of taking on the Government. All bets are off now. The other obvious factor is the upcoming elections – the BJP is unlikely to agree with Chidambaran’s statement. On the other hand, if the BJP does form the next government, we might be heading for resumed executions. In that case the last word will belong to President Pratibha Patil who can continue the present hiatus on executions till her term expires (irrespective of who is in power) by simply continuing to not dispose the mercy petitions pending before her.
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