Sanjeev Sirohi, Advocate
Published on: 16 April 2023 at 22:14 IST
While taking a very strong, simple and straightforward stand in consonance with the “rule of law”, the Apex Court in a most learned, laudable, landmark, logical and latest judgment titled The State of Maharashtra & Ors vs Renuka @ Rinku @ Ratan Kiran Shinde @ Ors. in Special Leave Petition (Crl.) No. 12674/2022 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on April 13, 2023 directed all the State Governments to ensure that mercy petitions in death penalty cases are decided and disposed at the earliest so that convicts won’t take advantage of delay.
Moreover, even the convict is subjected to worst torture with death penalty looming over him/her since decades before the mercy petition is decided which is the worst torture and no country with respect for human rights can ever allow this to happen that for decades no decision is taken on mercy petition due to the useless legal formalities and complicated procedures which makes a mockery of our legal system! It was also held that even if death penalty is to be commuted in view of inordinate delay in deciding mercy petition, an order to commute the death sentence to life imprisonment for natural life without any remission ought to be passed.
The Bench of Apex Court comprising Justice MR Shah and Justice CT Ravi Kumar passed the direction in a plea by State of Maharashtra challenging a judgment of the Bombay High Court in which the High Court commuted the death sentences imposed on the accused to life imprisonment.
It must be asked: Why should it take 3 days or 3 weeks or 3 months or 3 years or 30 years just to decide a mercy petition? One day or at the most two days should be more than enough to decide on a mercy petition.
Why the biggest mockery of “rule of law” is made by applauding the mercy petition not being decided even after three decades as we saw in case of killers of Rajiv Gandhi way back in 1991?
It is a no-brainer that the biggest question worth more than a billion dollar that still looms large is: Should Centre still feel very proud that this is sending a very good message among all the terrorists like the killers of former Chief Minister of Punjab also that even after committing the most ghastly murder of Chief Ministers and Prime Ministers still they are able to cool their heels in jails for decades and decades without being subjected to be hanged? Should there even be mercy petition for such terrorists who strike at the very core of our nation by attacking PM and CM? My best friend Sageer Khan way back in 1993 was deadly against terrorists being given the benefit of mercy petition and was of the unequivocal view that they should be hanged at the earliest so that the right message percolates down that those who commit terror acts would not be spared ever and they would have to face the most disastrous consequences for having dared to commit terror acts!
In my college days, I always mistook dacoits for terrorists but my best friend Sageer Khan clarified all my doubts. He said that, “An ordinary criminal like a dacoit or rapist or robber or murderer or any other ordinary criminal never goes to Pakistan or any other foreign country for getting training on how to commit dacoity or rape or robbery or murder but a terrorist always go and get such training to commit terror acts,”.
“Not stopping here, he gets all type of financial and other kind of aid from abroad to perpetrate direct attack on the very identity of our nation as a whole. Ordinary criminals attack and affect adversely either one or few persons but in case of terrorists things are quite different because terrorists don’t attack just one or few individuals rather they attack and affect adversely our nation as a whole whom they want to destroy completely. A terrorist always declares war against the nation but an ordinary criminal never does so,”.
“An ordinary criminal like a rapist or a dacoit will never attack our nuclear installations by which our entire nation can be wiped away but terrorists always place our nuclear installations on their hit list as they are a part of a proxy war waged by some of our neighbouring countries like Pakistan and it is a fact that if they are able to execute their evil design, our entire nation can be eliminated in one go! So why should we allow terrorists to avail of mercy petition like other ordinary criminals?” Sageer Khan also said that, “It also cannot be denied that a terrorist always gets all types of aid from foreign countries but an ordinary criminal gets no such help,”.
“An ordinary criminal will never attack national symbols like Parliament, Red Fort, Supreme Court but terrorists always dream of attacking such places and sometimes have been able to partially attack them also. What is however most intriguing is that our Indian politicians overlook everything and find nothing wrong in holding regular talks with them only and in passing time and again resolutions in their favour and not for ordinary criminals,”.
“An enemy soldier during war attack our army soldiers but terrorists are worse than them as they rarely attack men in uniform and always enjoy attacking innocent people especially pilgrims to holy shrines and still many of our leaders plead mercy for them,”.
“Do they still deserve mercy? It goes without saying that they are a potential threat to the very existence of our nation yet our government is not prepared to hang them even after they are convicted and sentenced to death by the Apex Court itself and forward puerile excuses for its inability in deciding on their mercy petitions for decades!”
Needless to say, even our former PM Dr Manmohan Singh had time and again warned of the terrorists launching attack on our nuclear installations by which our entire nation can be destroyed. Even PM Narender Modi keep reminding world leaders of the grave threat posed by terrorists to the whole world at large! Still should they be allowed to file mercy petition as a birth right? Why can’t Centre amend the rules to meet the present scenario and abolish mercy petition for terrorists?
At the very outset, this notable judgment sets the ball rolling by first and foremost putting forth that, “Leave granted. We have heard Shri Siddharth Dharmadhikari, learned counsel appearing on behalf of the State of Maharashtra, Ms. Ankita Chaudhary, learned Amicus Curiae on behalf of the original accused and Ms. Aishwarya Bhati, learned ASG appearing on behalf of the Union of India.”
To put things in perspective, the Bench then envisages in next para that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18-01-2022 passed by the High Court of Judicature at Bombay in CRLWP No. 3103/2014, by which the High Court has commuted the death sentences imposed on the accused to one of the life imprisonment, the State of Maharashtra and others have preferred the present appeal.”
In hindsight, the Bench then observes that, “From the impugned judgment and order passed by the High Court, it appears that the High Court has commuted the death sentence to life imprisonment on the ground that there was an inordinate unexplained delay on the part of the State/Governor of the State in not deciding the mercy petition(s) preferred by the accused which, as such, were kept pending for about 7 years and 10 months.”
While citing the most relevant case laws, the Bench then points out in next para that, “In the case of Jagdish Vs. State of Madhya Pradesh (2020) 14 SCC 156, this Court directed to commute the death sentence to life imprisonment taking into consideration the delay in disposal of the mercy petition of above 5 years. There are other decision also commuting the death sentence to life imprisonment on the ground of delay in disposal of the mercy petition(s) as under –
Sl. No. Particulars Citation
1. Madhu Mehta v. Union of India (1989) 4 SCC 62
2. Daya Singh v. Union of India & Ors. (1991) 3 SCC 61
3. Mahendra Nath Dass v. Union of India & Ors. (2013) 6 SCC 253
4. Shatrughan Chauhan v. Union of India (2014) 3 SCC 1
5. Navneet Kaur v. NCT of Delhi (2014) 7 SCC 264
6. V. Sriharan Alias Murugan v. Union of India & Ors. (2014) 4 SCC 242
7. Ajay Kumar Pal v. Union of India & Anr. (2015) 2 SCC 478
8. Union of India & Ors. v. Dharam Pal . (2019) 15 SCC 388.”
Most brilliantly and most forcefully, the Bench then postulates that, “It is true that the gravity of the offence can be a relevant consideration while commuting the death sentence to life imprisonment, however, inordinate delay in disposal of the mercy petitions can also be said to be a relevant consideration while commuting the death sentence to life imprisonment,”.
“If even after the final conclusion even upto this Court, even, thereafter there is an inordinate delay in not deciding the mercy petition, the object and purpose of the death sentence would be frustrated. Therefore, as such, all efforts shall be made by the State Government and/or the concerned authorities to see that the mercy petitions are decided and disposed of at the earliest, so that even the accused can also know his fate and even justice is also done to the victim.”
Most remarkably, the Bench then enunciates that, “In view of the above, the impugned judgment and order passed by the High Court commuting the death sentence to life imprisonment is not required to be interfered with,”.
“However, at the same time, the learned counsel appearing on behalf of the State as well as Ms. Ms. Aishwarya Bhati, learned ASG appearing on behalf of the Union of India are justified in making the grievance that in death case and even the Hon’ble High Court is right in commuting the death sentence to life imprisonment, in that case also even considering the various decisions of this Court including in the case of Jagdish (supra) and looking to the seriousness and gravity of the offence committed by the accused, namely nine persons were killed, the High Court ought to have passed an order to commute the death sentence to life imprisonment for natural life without any remission,”.
“If such an order would have been passed, it would be in the fitness of things and may give solace to the victims.”
As a corollary, the Bench then directs that, “In view of the above and for the reasons stated hereinabove, present appeal succeeds in part. The impugned judgment and order passed by the High Court commuting the death sentence to life imprisonment is hereby modified and it is directed that the accused to undergo life imprisonment for natural life and without any remission. The present Appeal is partly allowed to the aforesaid extent.”
Most significantly, the Bench then mandates that, “Before we part with the present order, we observe and direct all the States/appropriate authorities before whom the mercy petitions are to be filed and/or who are required to decide the mercy petitions against the death sentence, such mercy petitions are decided at the earliest so that the benefit of delay in not deciding the mercy petitions is not accrued to the accused and the accused are not benefited by such an inordinate delay and the accused may not take the disadvantage of such inordinate delay.”
What’s more, the Bench then hastens to add that, “We appreciate the efforts made by Ms. Ankita Chaudhary, learned counsel, who has assisted the Court as Amicus Curiae.”
Finally, the Bench concludes by holding that, “The Registry is directed to communicate this order to the Chief Secretaries of all the States and Union Territories.”
In conclusion, the Apex Court has most sagaciously directed all the authorities to decide the mercy petition against the death sentence at the earliest so that convicts are not able to take advantage of delay and to keep the mercy petition pending for decades makes no sense and even noted jurist and former Attorney General Soli J Sorabjee among many others have favoured mercy petition to be decided at the earliest so that those sentenced to death also come to learn of their fate soon.
Our law makers who are reviewing our penal laws must take the lead in taking the requisite initiative in this direction by fixing the time limit of deciding mercy petitions so that the cases are decided at the earliest and not kept pending for many decades which makes just no sense at all as it violates the legal rights of both the victim and the convicted person