Source: Supreme Court 

Why in News? 

A bench of Justice Abhay S Oka, Justice Ahsanuddin Amanullah and Justice Augustine George Masih laid down guidelines relating to mercy petitions.

• The Supreme Court held this in the case of State of Maharashtra v. Pradeep Yashwant Kokade & Anr. 

What was the Background of State of Maharashtra v. Pradeep Yashwant Kokade & Anr.  Case?  

• A female employee was murdered after being picked up for her night shift on 1st November 2007. Two men, Purushottam Borate (Convict No. 2) and Pradeep Kokade (Convict No. 1), were involved in the crime. 
• The victim was brutally killed. The postmortem report revealed severe injuries including skull fractures, rib fractures, and confirmed she was raped before her death. 
• Both convicts were arrested and initially convicted by the Sessions Judge in Pune on 20th March 2012. They were sentenced to death for multiple serious offenses including murder, rape, and criminal conspiracy. 
• The High Court and Supreme Court confirmed their death sentence, categorizing it as a "rarest of rare case" in September 2012 and May 2015 respectively. 
• On 29^th  May 2015, the prison authorities informed the convicts about their sentence. The convicts then filed mercy petitions to the Governor of Maharashtra in July 2015. 
• The Governor rejected their mercy petitions on 29^th  March 2016. They then filed mercy petitions to the President of India in June 2016. 
• The President rejected their mercy petitions on 26^th  May 2017. After this, the prison authorities began seeking execution warrants. 
• After multiple communications between various government departments, the Sessions Court in Pune finally issued execution warrants on 10^th  April 2019. 
• The convicts filed separate writ petitions before the High Court for quashing the warrants of execution on the following grounds: 
  • Inordinate and unexplained delay in execution of death sentence 
  • Inordinate and unexplained delay in deciding mercy petitions 
  • The convicts were kept in solitary confinement during pendency of appeals 
  • Rejection of mercy petition was illegal 
• The High Court commuted the death sentence to life imprisonment of total 35 years. 
  • The warrant for execution was therefore set aside by the High Court 
• The matter was thus before the Supreme Court.

What were the Court’s Observations?

• The Court held in this case that a convict can invoke the jurisdiction of the High Court under Article 226 of the Constitution if there is an inordinate and unexplained delay in the execution of death sentence post-confirmation of the sentence. 
• The Court further held that the terms “undue” or “inordinate” cannot be interpreted by applying the rules of mathematics. 
• What delay is inordinate would depend on the facts of the case. 
• If a convict is more than seventy years old suffering from mental ailments an unexplained delay of even 6 months in deciding a mercy petition can amount to violation of Article 21 of the Constitution of India, 1950. 
• The Court in this case held that there was an inordinate and undue delay at all the three stages.  
• Hence, the Court upheld the decision of the High Court

What are the Guidelines Laid down by the Supreme Court Regarding Mercy Petitions? 

• The Court issued following directions to the State Governments and the Union Territories: 
  • Dedicated cell for dealing with mercy petitions 
    • 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. 
    • The dedicated cell shall be responsible for the prompt processing of the mercy petitions within the time frame laid down by the respective governments. 
    • An officer in charge shall receive and issue communications on behalf of the dedicated cell. 
  • Official attached to cell 
    • An official of Law and Judiciary or Justice Department attached to the dedicated cell 
  • Information to Prisons about the officer 
    • All prisons informed about the designation and the address and e-mail ID of the officer-in-charge. 
  • Superintendent of Prison/officer-in-charge to forward the following details and the mercy petition to the dedicated cell  
    • As soon as the Superintendent of Prison/officer-in-charge receives the mercy petition he shall forward the copies to the dedicated cell and call for the following details from the officer in charge of the concerned police station: 
      • The criminal antecedents of the convict\ 
      • Information about family members of the convict 
      • Economic condition of the convict and his/her family 
      • The date of arrest of the convict and the period of incarceration as an undertrial; and 
      • The date of filing charge sheet and a copy of the committal order, if any. 
  • The jail authorities shall forward the documents to the officer- in charge of dedicated cell 
    • The jail authorities shall forward the following documents to the officer-in-charge of the dedicated cell and the Secretary of the Home Department of the State Government: 
      • Information furnished as aforesaid by the concerned Police Station with its English translation 
      • Copy of the First Information Report with its English translation 
      • Details, such as date of arrest of the convict, date of filing of chargesheet and actual period of incarceration undergone by the convict 
      • A copy of the committal order, if any, passed by the learned Judicial Magistrate 
      • A copy of charge-sheet with its English translation 
      • Report about the conduct of the convict in prison 
      • Copies of the notes of evidence, all exhibited documents in the trial and copies of statements of convicts under Section 313 of the CrPC with its English translation 
      • Copies of the judgments of the Sessions Court (with its English translation, if it is in vernacular language), High Court and this Court. 
  • Dedicated cell shall forward the copies of mercy petition to the authorities 
    • Copies of the mercy petitions shall be forwarded to the Secretariats of the Hon’ble Governor of the State or the Hon’ble President of India, as the case may be so that the Secretariat can initiate action at their end 
  • Way of Correspondence 
    • All correspondence, as far as possible, be made by email, unless confidentiality is involved; 
  • The State Government shall issue office orders/executive orders containing guidelines for dealing with the mercy petitions in terms of this judgment. 
• The Court further laid down guidelines with regard to the Court of Session: 
  • Session Court shall issue notice to the State Public Prosecutor on receiving an order of High Court confirming death sentence 
    • When the High Court confirms or imposes a death sentence, the Sessions Court must immediately take note of this order. 
    • The disposed case must be added to the court's cause list. 
    • The proceedings can be numbered as a Miscellaneous Application, following the applicable procedural rules. 
    • The Sessions Court must quickly send an official notice to the State Public Prosecutor or the investigating agency. 
    • In this notice, the court asks the prosecutor or investigating agency to provide two key pieces of information:  
      • Whether any appeal has been filed against the death sentence 
      • The current status or outcome of such an appeal or petition 
  • Steps to ensure warrant for execution of death sentence is issued as soon as all proceedings culminate 
    • If the State Public Prosecutor reports that an appeal is still pending, the Sessions Court must again:  
      • List the disposed case on the cause list 
      • Issue a notice to the State Public Prosecutor 
    • The purpose of this notice is to find out:  
      • Whether any review petitions are pending 
      • Whether any curative petitions are pending 
      • Whether any mercy petitions are pending 
    • If information is received about any pending petitions, the Sessions Court must:  
      • Regularly list the disposed case every month 
      • Keep tracking the status of these pending petitions 
    • The primary goal of this process is to:  
      • Stay updated on the legal proceedings 
      • Be ready to issue an execution warrant 
      • Ensure the warrant is issued immediately after all legal proceedings are completed 
  • Notice issued to convict before issuing warrant 
    • Before issuing the warrant, notice should be issued to the convict, and the directions issued by the Allahabad High Court in the case of People’s Union for Democratic Rights (PUDR)10, and as elaborated above, shall be implemented by the Sessions Court; 
  • Copies of order issuing warrant provided to convicts  
    • When a death warrant is issued, the prison authorities must: 
      • Provide the convicts with copies of the order and warrant 
      • Clearly explain the implications of the order to the convicts 
    • If the convict wants legal help to challenge the warrant, the prison authorities must: 
      • Immediately arrange free legal aid 
      • Assist the convict in accessing legal representation  
    • There must be a mandatory waiting period of 15 clear days between: 
      • The date the convict receives the order and warrant 
      • The actual date of execution  
  • Responsibility of the State Government 
    • 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. 

What are the Landmark Cases on Commutation on the Ground of Delay?  

• Triveniben v. State of Gujarat (1989)   
  • The Supreme Court held that while considering the delay, the period consumed in the judicial process culminating in confirmation of the death sentence should not be considered. 
  • The inordinate delay is a significant factor to be considered by the Court.