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Synopsis

The Supreme Court on December 9, 2024, issued detailed guidelines to expedite the execution of death penalty cases and the disposal of mercy petitions. It held that any undue or unreasonable delay in the process would violate the rights guaranteed under Article 21 of the Constitution, warranting the commutation of the death sentence to life imprisonment.

A bench of Justices Abhay S Oka, Ahsanuddin Amanullah, and Augustine George Masih said after the order of rejection of mercy petitions is communicated to a convict, the sword of Damocles cannot be kept hanging on him for inordinately long time. This can be very agonising, both mentally and physically, it added.

"No hard and fast rule can be laid down as regards the length of delay, which can be said to be inordinate. It all depends on the facts of the case. In a given case, a delay of two years may not be fatal. In another case, a delay of six months can be a ground to commute sentence," the bench said.

Dismissing the Maharashtra government's appeal, the top court upheld the Bombay High Court's judgment of July 29, 2019, which commuted death sentence of two convicts–Purshottam Dasrath Borate, a cab driver and his friend Pradeep Yashwant Kokade to life imprisonment for a total period of 35 years in the case of rape and murder of a BPO employee on November 1, 2007.

The court noted there was an inordinate delay in issuing warrants for executing the death sentence. This delay from June 2017 to April 2019 was entirely avoidable. This also was a delay post-confirmation of the death sentence by the top court.

"The undue delays have occurred in placing the mercy petitions before the Governor for the State and the President of India. In the facts of the case, the inordinate delay is on the executive and not on the part of the Constitutional functionaries," the bench said.

The court pointed out that the time consumed from the filing of mercy petitions before the Governor to the date of issue of the execution of warrants by the learned Sessions Court, Pune, was of three years, eleven months and fourteen days.

"Even if we exclude the time actually taken by the constitutional functionaries to decide mercy petitions, still the delay will be of more than three years. The court must consider the cumulative effect of the delays at three stages after taking into consideration the facts of the case," the bench said.

The court pointed out that Article 21 of the Constitution does not end with the pronouncement of the sentence but extends to the stage of execution of that sentence.

"An inordinate delay in the execution of the sentence of death has a dehumanising effect on the accused. An inordinate and unexplained delay caused by circumstances beyond the prisoners' control mandates the commutation of a death sentence,” the bench said.

The court said that a convict can approach the Supreme Court under Article 32 of the Constitution and invoke even the jurisdiction of a High Court under Article 226 of the Constitution in the event there is an inordinate and unexplained delay in the execution of the death sentence, post confirmation of the sentence.

"It is the duty of the Executive to promptly process the mercy petitions invoking Articles 72 or 161 of the Constitution and forward the petitions along with requisite documents to the concerned constitutional functionary without undue delay," the bench said.

It also said that inordinate delay in issuing execution warrants by the Sessions Court, as mandated by Sections 413 and 414 of the Criminal Procedure Code would violate Article 21 if they result in excessive mental and physical agony for the convict.

Among its directions to the state governments and the Union Territories, the bench issued the following orders:

• A dedicated cell shall be constituted by the Home Department or the Prison Department of the State Governments/Union Territories for dealing with mercy petitions, which shall be responsible for the prompt processing of the mercy petitions within the time frame laid down by the respective governments.
• An official of the Law and Judiciary or Justice Department of the State Governments/Union Territories should be attached to the dedicated cell so constituted;
• All the prisons shall be informed about the designation of the officer-in-charge of the dedicated cell and his address and email ID
• As soon as the Superintendent of Prison/officerin-charge receives the mercy petitions, he shall immediately forward the copies thereof to the dedicated cell
• On receipt of the said information, without any delay, the jail authorities shall forward the documents to the officer-in-charge of the dedicated cell and the Secretary of the Home Department of the State Government
• As soon as mercy petitions are received by the dedicated cell, copies of the mercy petitions shall be forwarded to the Secretariats of the Governor of the State or the President of India, as the case may be so that the Secretariat can initiate action at their end;
• All correspondence, as far as possible, be made by email, unless confidentiality is involved; and,
• The State Government shall issue office orders/executive orders containing guidelines for dealing with the mercy petitions in terms of this judgment.

The bench directed the Registry of the court to forward copies of the judgment to the Secretaries of the Home Department of the respective State Governments and Union Territories for implementation.

It also issued the following guidelines for the sessions court:

• Upon confirmation of the death sentence by the High Court, the Sessions Court shall immediately issue notice to the State Public Prosecutor or the investigating agency calling upon them to state whether any appeal or special leave petition has been preferred before this Court and what is the outcome of the said petition/appeal;
• After confirmation of death sentence by this court and filing of review, curative and mercy petitions, the sessions court shall keep on listing the disposed of case after intervals of one month so that it gets the information about the status of the pending petitions. This will enable the Sessions Court to issue a warrant for the execution of the death sentence as soon as all the proceedings culminate;
• Before issuing the warrant, notice should be issued to the convict
• Copies of the order issuing the warrant and the warrant shall be immediately provided to the convicts, and the Prison authorities must explain the implications thereof to the convicts. If the convict so desires, legal aid be immediately provided to the convicts by the Prison authorities for challenging the warrant. There shall be a gap of fifteen clear days between the date of the receipt of the order as well as warrant by the convict and the actual date of the execution; and,
• It shall also be the responsibility of the concerned State Government or the Union Territory administration to apply to the Sessions Court for the issuance of a warrant immediately after the death penalty attains finality and becomes enforceable.

The court further directed that a copy of the present judgment be forwarded to the Registrar Generals of all the High Courts, who in turn shall forward the copies thereof to all the Sessions Courts.

The court scheduled the disposed of appeals on March 17, 2025, to consider compliance.

Case Title: State of Maharashtra & Ors Vs Pradeep Yashwant Kokade & Anr