In an era where the human rights activists are fighting for the abolishing capital punishment terming it as 'inhumane', courts revert to this punishment as a matter of last resort and plenty of safeguards have been put in place. The sentence passed by the trial court has to confirmed by the high court. The decisions of the lower court can go into appeal to the apex court and the decision of the court is final and binding over all courts throughout the territory of the country[1] and the decision of the Supreme Court cannot be challenged before any other court. Article 21 of our constitution gives the right to life to every person which cannot be taken away except by procedure established by law and Constitutional courts in India are the ultimate guardians of this right. Capital Punishment has always been seen as an attack on the right to life and voices have been raised again and again labeling capital punishment as ‘barbaric’ and ‘inhumane’ which should be done away with.
Taking someone’s life is a big punishment hence capital punishment is given in very limited number of offences as specified in Indian Penal Code, 1860, also the death sentence is awarded in ‘rarest of rare case’ only by the trial court, as according to the guidelines laid down by the Supreme Court in Bachhan Singh v. State of Punjab.[2]Now what is relevant to note is that in almost all the cases where the death sentence is awarded, the appeal goes to Supreme Court which after taking view of the facts of the case decides whether the case falls under the category of rarest of rare or not. What is pertinent to note here is that Apex court is quite cautious while awarding death sentence which is evident from the facts that Supreme Court confirms only 3 to 4 death sentence each year.[3] Still, the decision of the Supreme Court does not leave the convict without a remedy which is usually the case otherwise and there are plenty of doors left open for the convict.
The first remedy to the death convict is provided by the constitution itself, i.e. ‘Presidential Pardon’. Article 72(1) (c) empowers the President to pardon, reprieve, respite, remit or commute the sentence even confirmed by the Highest Court. Under this Article, the president has power to grant complete pardon from the punishment, temporarily suspend the sentence temporarily or to change the punishment and giving lesser punishment in place of death sentence such as life imprisonment. The presidential pardon is an executive power that is to be exercised by the president on the advice of the council of ministers. What is important to know is that the pardon eliminates the effect of the conviction without affecting the convict’s guilt or innocence. The logic behind presidential pardon is that it is to be exercised as an act of grace and humanity as many times the Judges are not able to reckon everything due to their legal perspective.
In Swaran Singh v. State of Uttar Pradesh[4]the Supreme Court has changed its approach and held that judicial review is available against presidential pardon on limited grounds of being arbitrary and mala fide in nature. In the present case, the Supreme Court held the order passed by the governor under Article 161 remitting the death sentence on political grounds per incuriam as it was based on extraneous consideration. The similar position was reiterated by the Supreme Court in Khehar Singh v. Union of India[5]where the mercy petition was rejected straightaway by the president on the ground that it can no go into the merits of the case after the question has been already decided by the apex court. The court exercising the power of judicial review asked the president to reconsider the petition on the ground of ‘non-application of mind’. The court further clarified that in mercy petition president has complete power to scrutinize the records available and then come to a different conclusion from that of the court. In doing s other president does not amend, supersede the judicial record.
The second remedy that s available to a death convict is of ‘Review Petition’. Once a death sentence has been confirmed by the apex court the same petition can be presented again before the same bench in a petition for ‘review’. Article 137 of the constitution lays down that Supreme Court can review any final judgment given by it in case justice demands it. It is important to note that most of the review petitions are rejected by the court, for the court to maintain the review petition the petitioner needs to satisfy the court that the order of the court is grossly erroneous and results in the miscarriage of justice.
The third remedy available to death row convict is that of ‘Curative Petition’. The concept of curative petition was evolved by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra[6], the court laid down that any aggrieved person can be granted relief against final judgment/ order of the Supreme Court, even after the dismissal of the ‘review petition’. This petition can be considered by the Supreme Court in the exercise of its inherent powers under Article 142 to do complete justice. To maintain a ‘curative petition’ the petitioner needs to establish either there was a violation of the principle of natural justice of if order executed would result in abuse of the procedure of the court or gross miscarriage of justice.
If we talk about conventional remedies, then the above-mentioned remedies are the exhaustive list of the remedies available to a death row convict. But as already stated Supreme Court is the guardian of the rights of the citizens and it keeps on evolving ‘new remedies’ so as to ensure that there is no prejudice or biases against the person convicted and there is no stone left unturned to provide the accused to prove his innocence. The latest was the ‘late night petition’ in the famous case of Yakub Memon who was awarded death sentence for his role in 1993 Mumbai blasts. The Supreme Court heard a petition at midnight, 3:30 am, hours before the execution timing set for Yakub Memon. The petition was heard by a bench of 3 judges after the lawyers of the convict were able to convince the CJI that Yakub Memon was deprived of due process and there were solid grounds for the sentence be stayed.
From the above discussion, it is evident that there are plenty of remedies available to a death row convict even after the sentence have been confirmed by the highest court whose decision is otherwise final. It is also noteworthy that Supreme Court has taken an ‘activist approach’ as the guardian of the rights of the citizen so as to protect the right to life of every person.
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