What an analysis of the 40 death sentence cases being heard by the Supreme Court tells us

The backlog in cases at the Supreme Court has meant that death row inmates in India spend years, even decades, in the shadow of death, while they pursue legal remedies available to them. GAURI ANAND writes about the Supreme Court's September 1 notification on death penalty case hearings and analyzes the status of the 40 death penalty cases currently being heard by it to underscore the need for structural changes to address delays in the system.

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ON September 1, 2021, the Supreme Court issued a notification stating that 40 death penalty cases were to be listed before three-judge benches of the apex court with effect from September 7. As of the end of September, 11 of these cases have been listed, but none have come to their logical conclusion.

Upon going through the orders in these cases once they arrived at the Supreme Court, we see that even though the Court is cognizant of the fact that death penalty hearings must be concluded in a timely manner, the proceedings are rife with adjournments and delays. These are glaring indications of an overburdened legal system.

Also read: Delhi High Court Women Lawyers Forum Debates Death Penalty

Overburdened courts and their officers 

It becomes evident from perusing the court proceedings that the courts are not the only overburdened components in India's criminal justice system. With advocates taking on more than they have the bandwidth for, often, despite cases being listed, further adjournments are granted at the cost of the accused or convicted individuals' time, freedom, and mental health.

The first of the cases in the notification, Bibi Sidhika vs. State of Madhya Pradesh, was brought before the Supreme Court in October 2014. After a few hearings while documentary requirements were being fulfilled, the case was not heard for over two years between 2016 and 2018. It was last adjourned in December 2019, at which time the counsel for the petitioner requested more time. When it was listed this September, it was once again adjourned for over a month.

In the case of Mohd.Arif @ Ashfaq, no proceedings were been recorded between August 2012 and October 2018. When the matter was eventually listed in January 2021, the counsel for the petitioner requested additional time, and was granted six weeks. The matter was also listed twice this September, with the counsel for the petitioner requesting an adjournment both times.

Manoj & Ors vs. State of Madhya Pradesh was first heard in February 2015, when the execution of the death sentence was stayed. No Court proceedings were recorded between August 2016 and March 2019. In February this year, the counsel for the appellants requested six weeks' additional time when the matter was finally listed. On that occasion, the apex court reiterated that death penalty cases must be heard expeditiously, and granted a two-week adjournment. No proceedings have been recorded thereafter till it was listed this September. It has been part heard, and was to be listed later the same month.

In Chandra Bhushan, even though the case was brought before the Supreme Court in 2013, trial court records were only called for in 2018, and there are no records of arguments in the matter so far. The state of Bihar appealed the decision of the Patna High Court, which had negated a death reference and freed the accused. Thereafter, the counsel for the state failed to file the necessary documents despite multiple opportunities and adjournments, causing a delay of almost five years.

Similarly, in Madan vs. State of UP, multiple adjournments were granted between 2019 and 2020 upon the request of the counsel for the appellant. In Manoj Pratap Singh vs. State of Rajasthan, when the matter was finally listed in September this year, it was once again adjourned as requested by the counsel for the petitioner.

To drive the point home in the most ironically tragic way, in Bhagwani vs. State of MP, the petitioner had passed away in April 2019, but the counsel for the respondent state was still filing vakalatnama at the last recorded hearing in January 2020.

Also read: Death penalty is premeditated murder in the name of society's 'collective conscience'

Structural and systemic deficiencies leading to delays

 The delay in hearing death cases in India is also in large part caused by the poorly functioning mechanisms of lower courts. Given the lacuna in proceedings involving the chain of custody of documentation, there is an urgent need to establish a standard operating procedure that functions under the assumption that all judgments will be appealed.

To illustrate, in Mehtab vs. State of Uttarakhand, arguments have still not been possible as original records from the lower courts were yet to be made available. When the matter was listed in September, the amicus curiae was unable to access the original records.

In the case of Sunder @ Sundararajan, the execution of the death sentence was stayed as far back as in March 2013. At the last recorded hearing in February 2020, the apex court was still requesting the lower courts for translations of the original records and documents from the trial.

Even more incredibly, in Karan @ Faitya and in Naveen @ Ajay, when the Supreme Court reminded the Madhya Pradesh High Court to send original records, in both cases, the High Court wrote back stating that the trial court record had already been sent, while the Supreme Court Registry could find no such records.

That Article 348 of the Indian Constitution mandates that all proceedings before the Supreme Court take place in English, was reiterated by the Court in Bhagwani. While waiting for the concerned High Court to comply with the apex court order, however, the petitioner expired in April 2019, a year after his petition was admitted by the latter court.

Structural deficiencies are evident in almost all the cases the Supreme Court has notified. In State of Maharashtra vs. Feroz Abdul Rashid Khan & Anr., the Registry was asked to expedite the transfer of documents in November 2017. The death penalty was finally stayed only in May 2019, after which the Registry stated it would take 60 days to digitize the 1,35,000-page original record pertaining to the 1993 Mumbai serial blasts that killed 250 and injured 700. 28 years later, proceedings continue to be delayed by digitization requirements.

Along a similar vein, in the case involving the 2003 Mumbai blasts accused, one of the three accused, Arshad Ahmad's appeal was brought before the Court in 2012. After significant delays in filing translated documents, and repeated adjournments, in 2018, the counsels requested continuous hearings, given the subject matter of the case. However, in April 2019, one of the accused passed away, and the matter has continued to be adjourned.

There are, perhaps, some exceptions to these prolonged timelines. In Pappu vs. State of Uttar Pradesh, after almost two years of adjournments and other delays, the matter was finally heard this September, and judgement has been reserved.

There is something to be said about a legal system, though, when three years is considered a short duration for a death penalty case to be concluded.

Also read: Death penalty shows just how political in nature the criminal justice system happens to be in India

The details of all 40 cases are enumerated below:

Also read: The Cruelty of Clemency: Mercy Petitions and the Abolitionist Discourse

A fine balance

 While at one end, we discuss the questions of justice that hearings held in abeyance bring up, Anokhilal vs. State of Madhya Pradesh is a fine example of how a hurried hearing cannot grant justice either. The amicus curiae appointed by the trial court failed to appear at the hearing, at which time, the trial court assigned a new advocate to the position, and charges were framed on the same day. Within 13 days, the trial court had also heard and convicted the accused, imposing the death penalty on the same day the trial was concluded.

At the last hearing of this appeal, the Supreme Court found that "expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the   opportunity to the accused, on which postulates, the entire criminal administration of justice is founded."

Finding that the trial court had erred in expediting the process to this degree, the Supreme Court concluded its opinion on the procedural issues at the trial court, without prejudicing the issue of merits. No proceedings in the matter have been recorded since December 2019, however, which begs the question of finding the balance between two extremes, to ensure justice is truly served in the end.

Also read: Justice A K Sikri and the Death Penalty

Inordinate delays and the shadow of death

Indian courts continue to hand out death sentences in large numbers each year; in 2020, 77 death sentences were imposed by sessions courts. As of December 31, 2020, India had 404 prisoners on death row, with a total of eight executions in the last 20 years.

The death row phenomenon, a condition that leads to severe physical and mental deterioration, therefore, has immense significance in India, especially given the pathetic living conditions in the country's prisons.

With the growing backlog of death row cases in India, precedent from the 1950s seems almost inapplicable.  In Mohinder Singh vs. The State, decided in 1950, the Supreme Court held that ordering a retrial would be "unfair to ordinary and settled practice seeing that the appellant has been in a state of suspense over his sentence of death for more than a year." Today, one year would be a luxury to many who are lucky to have their matter heard once within a year.

Perhaps this is why the apex court's Vatheeswaran judgement of 1983 that stated that a two year gap between an initial death sentence and the hearing of the case would render the death sentence quashed, was overruled in Sher Singh within a matter of months. In Triveniben (1988), a five-judge Constitution bench went a step further to lay down that no fixed period of delay could be laid down as a cut-off.

Evidently, the Supreme Court's consideration of delay while commuting death sentences has been inconsistent, to say the least. In Daya Singh (1991), it commuted a death sentence by considering the cumulative time the convict had spent imprisoned, while in Dhananjoy Chatterjee (2004), it went the opposite way and refused to consider delay as a ground for commuting the sentence, even though the delay was attributable to the negligence of State authorities.

In most cases where it is argued that inordinate delay in hearing cases and disposing of mercy petitions amounts to torture, the State has held the position that the delay gives the convict a new lease on life, basically arguing that life on death row is better than death itself.

In January 2020, under pressure to execute the convicts in the 2012 Delhi rape case, the central government approached the Supreme Court seeking modifications to the execution guidelines, arguing that Supreme Court guidelines regarding mercy petitions and execution of death sentence were being misused by convicts.

Even though the seven-day limit was not granted, all said and done, the four convicts were executed in March 2020, with the government at the centre treating this as a consolation and victory.

The emerging pattern here appears to be one of general apathy. Lengthy passages of time in the shadow of death have become endemic to the Indian criminal justice system. Many watch their loved ones die or themselves pass away while awaiting a decision.

Also read: An Open Letter to Swati Maliwal in protest against her move for death penalty for rape of minors

In the United States, the prolonged periods of time that individuals remain on death row have been linked to high rates of depression, and more largely, the 'death row syndrome'. The death row phenomenon has been denounced in many countries, and has been treated as a reason not to extradite individuals to the United States, or to forbear the death penalty altogether.

In contrast to India's stand on capital punishment, 142 countries have abolished the death row in practice or by law, with many categorizing inordinate delay as cruel, inhuman, or degrading treatment or punishment as described in Article 7 of the International Covenant on Civil and Political Rights.

Perhaps the Supreme Court's notification of these 40 cases, many of which were brought before it less than five years ago, is an indication of a changing tide. While it would be naïve to hope that these hearings will change the jurisprudence on the constitutionality of the death penalty, one can hope that the Court applies a more humane approach to the proceedings; even the 'worst of the worst' have a right to life with dignity.

(Gauri Anand is an environmental lawyer and part of the research and editorial team at The Leaflet. The views expressed are personal.)