One  hopes  that  the Supreme Court will continue to follow these enlightened and progressive decisions and eventually  take the next logical step of holding the death sentence itself as   unconstitutional,  inhuman and arbitrary ~ FAIZAN  MUSTAFA

The Supreme Court&’s stand has also been inconsistent in the matter of importance to be attached to the facts and circumstances of each case while considering the question of commutation. In the Lalla Singh case (1978), the  Supreme Court appreciated the award of death sentence by the trial court on the murder of two persons, but still thought it fit to commute the sentence due to the lapse of six years. The case clearly shows that the delay factor is vital even if the award of death penalty was just and reasonable, according to the facts and circumstances of the case. Recently in the Bhullar case, the court again emphasized the vitality of facts and circumstances of the case but not the factor of delay of more than a decade. In the Rajiv Gandhi assassination case, the facts and circumstances were again emphasized.
In the case of Nachhitar Singh (1975), the ground of prolonged delay from the date of occurrence (18 December 1971) to the date of disposal of the case by the Supreme Court (9 September 1974) was strongly argued by defence. But the court held that this lapse of time since the trial judge had first imposed the death sentence had mainly been due to the defendant&’s successive appeals. It confirmed the sentence of death. One fails to understand how the constitutional and legal right of the appellant to go in appeal may operate as detrimental to his interests.
Surprisingly, Justice Sarkaria, who had himself commuted the sentence only a year ago in the Chawla case, once again tried to go back to Piare Dusadh decision of 1943. He observed that any “commiserative factor” was a matter for the executive to consider in the exercise of its prerogative of clemency.
The interesting debate over commutation came to the fore again in 1983 following two significant decisions of the Supreme Court delivered within a month. In TV Vatheeswaran, Justice Chinnappa Reddy observed: “Prolonged detention to await the execution of a sentence of death is unjust, unfair, and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death.” It was further observed that making all reasonable allowance for the time necessary for appeal and consideration of reprieve, “we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand quashing of the sentence of death”.
Within weeks, TN Vatheeswaran was overruled by a Bench of Chief Justice Chandrachud, Justice Tulzapulkar and Justice Varadarajan in the Sher Singh case. Chief Justice Chandrachud opined that there was no hard-and-fast rule that in every case of  prolonged delay in the execution of a death sentence, the sentence must be commuted to life imprisonment. In Javed Ahmad (1985), Justice Chinappa Reddy and Justice Venkataramiah questioned the technical correctness of a three-judge Bench  overruling a two-judge decision  and the court commuted the death sentence in view of the delay of just two and half years.
In the Triveniben case, the Supreme Court tried to resolve the conflict between these two conflicting decisions of its own. The delay, which could be taken into account while considering the question of commutation of sentence of death into one of life imprisonment, could only be from the date on which the judgment by the apex court is pronounced, i.e., when the judicial process has come to an end. The only delay which could be material for consideration will be, subsequent to the final decision of the court, the delay in disposal of the mercy petitions or delays occurring at the instance of the executive. This decision effectively moved the entire focus from the question of delay away from the judicial process to that of the executive process of clemency.
The hopes of settled law once again came to an end in 1991. In a nine-page, decision LM Sharma and JS Verma, JJ, commuted the death sentence to life imprisonment in the Daya Singh case. Though the court relied on Triveniben, it did not  examine the conduct of Daya Singh in the delay, as was required. One could also mention the petition filed by a prisoner named Banik of Alipore Central Jail. The court treated it as a petition by Daya Singh.
The Dhananjay Chatterjee case (2004) is indeed very painful. Here,  a person who had served life imprisonment was put to death as the court did not pay much attention to the fact that  the  judicial process was stalled for as long as nine years due to the negligence of officials of the state. The court refused to consider the question of delay on the ground that the petitioner had no locus to be heard as he was an uninvolved third party and thus did not follow Daya Singh.
If in the Dhananjay case, state officials were responsible for the delay, in the Gurmeet Singh case (2005), officials of the High Court were responsible. But the apex court  once again refused to take into account a delay of even seven years in the judicial process caused by  negligence of the staff of Allahabad High Court. The  Supreme Court had noted that officials were at fault, and yet commutation was not granted.
In the Bhullar case,  the Supreme Court refused to commute the death sentence in spite of the prolonged delay in the disposal of the mercy petition because he had committed a  “terror crime”. The court refused to follow Triveniben. In the Shatrughan Chauhan case on 21 January 2014, the apex court accepted that this artificial classification lacks rationale and legislative sanction and is inherently arbitrary and in clear violation of Article 14.
The convicts in the Rajiv Gandhi case were given the benefit of this ruling and their sentences were commuted last Wednesday.  (A decision by the executive to free them has now been stayed by the Court). One  hopes  that  the  Supreme Court  will continue to follow these enlightened and progressive decisions and eventually  take the next logical step of holding death sentence itself as unconstitutional, inhuman and arbitrary.
The predictability of judicial decisions is the cherished value of the common law tradition due to the doctrine of precedent. Such inconsistency on  commutation is  arbitrary and substantiates Holmes&’s thesis that the law of a great nation means the opinion of a half-a-dozen old gentlemen. For, if those half-a-dozen old gentlemen form the highest tribunal of a country then no rule or principle which they refuse to follow is law in that country. One hopes the highest court in future  would show some respect to its own decisions.

(Concluded)