Human Rights Diary January 2014

Supreme Court's guidelines on implementation of the death penalty will go a long way in recognizing the rights of those who are on the death row. While the court's judgment might make executions rarer than in the past, it is high time India enacted a law completely abolishing capital punishment as any civilized society is expected to do. With the landmark judgment of Tuesday, delay in taking a decision on mercy petitions has become a valid ground for commuting death penalty to life imprisonment. Fifteen petitioners have got relief with the ruling but it will also apply to others who are in the same situation, including those who are convicted under the anti-terrorism law. The court has also made it clear that a death sentence cannot be carried out if the convict suffers from mental illness.

The courts have progressively disfavored the death penalty in the last many years. After the law was amended in 1973 mandating that judges should give special reasons for awarding a death sentence, the Supreme Court laid down the 'rarest of rare' doctrine in 1980. It also refused to award the extreme penalty in many recent cases and has now reduced the scope for implementation of the sentence in many cases. Still judicial thinking has not always been consistent.   The same court which had last year commuted a death sentence on the ground of delay in disposing of the mercy petition, refused to do so in another petition a few weeks later. The same inconsistency has been seen in the handling of mercy petitions too. Subjective, political or other consid­erations have influenced such deci­sions. While former President Prat­ibha Patil commuted the death sentences of 35 persons in 2012 be­fore demitting office, Pranab Mukherjee rejected the largest number of petitions in a few months after becoming the President.

The court's guidelines will also put an end to solitary confinement and mandate periodical physical and mental health examinations and offer of legal aid to convicts. There should be a minimum 14 days between rejection of the petition and execution, and there should be communication with the family. In most cases, including in Afzal Guru's, many of these fair and just rights had not been respected.

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