Life Gets a Long Rope

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What the Supreme Court’s commutation of 15 death sentences at one go augurs
Twenty-one years ago, a bus rolling through the Satyamangalam forest in Karnataka carrying police and forest officials went over a landmine and blew up. As many as 22 people were killed, and since most of them were policemen, the State’s retaliation was swift. It arrested a large number of men, several of them linked to the sandalwood smuggler Veerappan. It would take a decade for a court in Mysore to acquit 109 of them. The judgment came in 2001. Of the 14 convicted, seven were sentenced to life. These included Bilavendran, Simon, Gnanprakasam and Madiah, who appealed to the Supreme Court and found themselves sentenced to death instead. The ‘Veerappan gang’ of four are now, respectively, 55, 50, 60 and 64 years old.

Their mercy petitions were sent to the President, but nine years later, they still had no answer. Three times did the Union Home Minister advise the President to turn down the mercy pleas. The petitions passed from one incumbent of the Rashtrapati Bhavan to the next, until finally in February last year, President Pranab Mukherjee rejected all four. Some time before that, he had rejected the pleas of terrorists Ajmal Kasab and Afzal Guru and they had swiftly been executed in secrecy. More hangings, many sensed, would come soon. On 17 February 2013, a group of anti-capital punishment activists learnt that the Veerappan four were going to be executed the next day. They contacted Yug Mohit Chaudhry, a Mumbai-based lawyer who is one of India’s foremost experts on post- mercy pleas. “I immediately prepared a petition and sent it to a lawyer based in New Delhi,” he says, “He then moved the Chief Justice at his house late that night.” The next morning, the executions were stayed.

Last week, the Supreme Court took up a set of 15 petitions, all of which had been rejected in the past year after hanging fire for years on end before Mukherjee took over as President in July 2012, and, in a burst of executive efficiency, began disposing of one case after the other in rapid succession. Execution dates had been fixed for all 15 petitioners, who had lawyers such as Yug Mohit Chaudhry, Anand Grover, Colin Gonsalves and Ram Jethamalani arguing in their defence.

On 21 January, The Supreme Court ruled that there was no doubt about the guilt of any of the convicts, but commuted all 15 death sentences to life terms. The main reason the court cited was the delay in rejection of their mercy petitions. Ranging from a wait of 11 years, as in the case of Suresh and Ramji, to two in the case of Magan Lal Barela, the Government could not offer any explanation for its tardiness. In the case of the Veerappan gang, it was worse. An RTI application showed that their mercy petitions were kept pending while those submitted after them were accorded priority. Another reason for the commutation was that a few of these convicts were found mentally ill, and to hang them would go against globally accepted norms of human rights.

All the cases are of gruesome murders. The convicts include men who murdered members of their own family. One case was of a rape and murder, another of a gambling debt, while two were related to crimes of passion, and one was an act of terror. The commutation does not mean they stand absolved of guilt, just that they will serve a less severe punishment.

Some might call the 21 January verdict nothing short of a miracle. Others may say that justice is losing its potency. Either way, 15 human beings have unexpectedly been brought back from the dead. It is a rare moment in Indian judicial history.

Yug Mohit Chaudhry may as well be a doctor. He saves lives. “He is like an angel,” says Kumar, brother of Sanjeev, one of the 15 convicts. The bidi-smoking lawyer has a PhD in English Literature from Oxford. He followed this up with a degree in law at Cambridge. He is a death penalty abolitionist who specialises in ‘post-mercy’ cases— those that have been through three rounds of court hearings and have had their mercy pleas rejected even by the President. There exists only one legal last resort after such a rejection—a final appeal to the Supreme Court.

Working with a group of eminent lawyers from Delhi and some juniors, Chaudhry represented all 15 petitioners whose death sentences have been revoked for a lighter punishment. This victory takes his tally of those saved from the gallows to 20 individuals (a few thanks to a mercy plea acceptance by the President).

“Will you come and celebrate with me tonight?” Chaudhry asks a friend on the phone, at a guest house in New Delhi where he is staying. “Run off if you have to, but you have to meet me, even if it’s for half an hour.” The lawyer’s phone rings incessantly, but when he is in Mumbai, you can only reach him in office on a landline. He carries a mobile phone only while travelling. This is unusual for a lawyer who focuses on capital punishment, considering the alacrity with which India has been trying to execute death row convicts. Chaudhry was also the one who coordinated the last-minute reprieve of the executions of Magan Lal Barela and the Veerappan four. In both these cases, lawyers approached the Chief Justice of India at the judge’s residence on the night before the execution and got a stay order.

‘And what if excess of love bewildered them till they died?’ asks Chaudhry in an article he wrote for a newspaper. The line is from WB Yeats’ 1916 poem titled Easter. The underlying philosophy seems to be an inspiration to him. After his PhD, he had published a book on Yeats. What made him rethink the purpose of his life, however, was a specific instance of police torture: the cops had brutalised some employees working on his sister’s farm. “What is the use of teaching English in India if I am unable to protect people who work for me? It seemed like self-indulgence with no utility,” he says, “I concluded that law is the more effective way to bring about change.”

As a lawyer, he is relatively young, having started his practice only in 2000. His first post-mercy case was in 2010. “I was definitely a better person when I was not practising law,” he laughs. Now, he is on a mission. “A man’s life is going to be taken and it is going to be taken in our name,” he says in general horror of capital punishment, “It behoves us to do something about it.”

Yet, law demands utmost professionalism and Chaudhry refuses to get emotionally entangled in the cases he handles. “I didn’t tell my clients the date of their judgment. I didn’t want them to suffer the anxiety,” he says. “Of course, I always want all my clients to win, but I wouldn’t dare hope. The fall [of disappointment] is too great. But this is a terrible position to be in. Because sometimes you ask yourself, ‘Who might lose?’ and realise you’re playing the role of the executioner.”

The death penalty has a twisted history in India. It was in 1980 that the Supreme Court gave its seminal Bachan Singh judgment, instituting the doctrine of its being applied only in the ‘rarest of rare’ cases. It also laid down mitigating factors like age, poverty and scope for reform. India currently has 414 prisoners on death row, according to statistics for 2012 of the National Crime Records Bureau, and the past few years has seen the air getting increasingly charged in favour of capital punishment.

In 2012 and 2013, following the Delhi gangrape, there were people on the streets screaming for the rapists to be hanged, without any mercy shown to even the convicted juvenile. A group of agitators demanding their execution may still be spotted at Jantar Mantar, a popular protest site in the national capital. In 2012, the State’s execution of Ajmal Kasab, convicted for his role in the 26/11 Mumbai terror attacks, met with what can only be described as popular applause. Before Kasab’s hanging, the last execution had been back in 2004. But Kasab’s was followed in 2013 by Afzal Guru’s as punishment for his role in the December 2001 attack on Indian Parliament.

Given the din of demand for executions, Chaudhry calls the present judgment humane and brave. “It takes a great deal of courage for a court to commute such a large number of death sentences at one go,” he says, “Usually there will be considerations in a judge’s mind that such a move will be criticised. This has not happened. The judgment also covers a large number of issues besides the matter of delay or mental illness. It is concerned not just with imposition of the death penalty, but what we do with people before we execute them—the conditions under which a prisoner is kept, the lingering death of living under threat of the noose, and even post the execution of the convict. They have tried to humanise as far as possible the manner in which a death sentence is executed.”

The humane aspects of this verdict are evident in the tonal difference with the earlier Bhullar judgment, for example, which scoffed at the idea of grace. ‘It is paradoxical that people who do not show any mercy or compassion for others plead for mercy,’ wrote Justice GS Singhvi in his verdict then. The judge differentiated between the value of a terrorist’s life and that of a non-terrorist’s. Contrast this with the view of this bench headed by Chief Justice of India P Sathasivam, which speaks of how an unreasonable delay in executing a prisoner amounts to his or her torture, an agony that in itself violates a citizen’s right to life under Article 21 of the Indian Constitution. He coupled this with Article 14, which guarantees equality, and clarified that a terrorist can thus not be discriminated against.

Sundar Singh, one of the 15 convicts whose sentence has been commuted, has been certified a ‘schizophrenic’ by the State Mental Health Institute in Dehradun. Singh, according to a researcher who met him, believes the people he killed are still alive. “He thinks he is in jail only because his house collapsed and the police brought him there to protect him,” says the researcher, who is studying the socio-economic backgrounds of death row convicts and does not want to be named.

On its part, the court judgment notes that Singh is ‘unkempt and untidy, cooperative but not very much communicative’ and ‘at times is inappropriate and illogical’. Jail staff and fellow prisoners found that he likes to stay alone, does not interact with others and is unconcerned about his hygiene. “He is not mentally fit to be awarded [the] death penalty,” doctors are quoted as saying in the judgment document, recommending that he be placed under long-term supervision. Despite this, his mercy plea had been rejected.

Davinderpal Singh Bhullar, though not a petitioner, has also been undergoing psychiatric treatment. Last year, the Supreme Court upheld the presidential rejection of his mercy plea. “I was surprised and bitterly disappointed at the wrong judgment in the case of Bhullar,” says Chaudhry, “But I’m delighted that this judgment has corrected that mistake.” Among the many things that the judgment seeks to correct is the judicial system’s insensitivity towards mental illness. It has overruled the Bhullar verdict, and his family is now in the process of applying for his sentence to be commuted to life.

The judgment could also impact the Rajiv Gandhi case. Here too, there has been a long delay, with three convicts having waited 11 years already to know their fate. “The President and the Government have not applied their mind to the facts of the case. Last week’s verdict completely covers this case,” says Chaudhry, who will represent the petitioners in this case as well.

This judgment does not mention Afzal Guru but it seems to have tried making amends for the shameful manner in which his execution was conducted. Guru was not even allowed to meet his family before being put to death. “Even Pakistan treated the case of Sarabjit Singh better than we were treated. His family was allowed to meet with him, and his body came back to Punjab,” says Tabassum, Guru’s wife, speaking over the phone from Sopore. His cousin Yaseen recounts, “The letter informing us that his mercy petition had been rejected and an execution was fixed reached us two days after he was hanged. And it said, ‘This is for information and necessary action.’ What necessary action could we have taken then?” “Had the Supreme Court’s present judgment come a year earlier, Afzal might have been alive,” sighs Tabassum. This February marks a year since the execution of the former fruitseller turned terrorist.

Not all prison manuals in the country have the same procedure for executions. “In some cases, convicts are only told verbally by jail authorities. In states like Uttar Pradesh, there need be only one day between the rejection of your mercy petition and execution. This makes it difficult for us to even attempt to have the execution stayed,” says Chaudhry. Last week’s ruling makes it essential that the family and convict receive this notice in writing. Also, the execution can take place only 14 days after the convict is informed that his mercy petition has been rejected.

The new norms might prevent a situation like what happened with Magan Lal Barela last year: word unexpectedly reached his lawyers through a news website one evening that he was to be executed the next morning. They had to go to the Chief Justice’s residence late that night, and he stayed the execution around midnight. Barela was saved in the nick of time. And now his sentence is among the 15 just commuted.

In many ways, the 154-page judgment exceeds its brief by setting up an entire framework for capital punishment. It has formulated 12 guidelines, prescribing legal aid, regular physical and mental health reports, the making of all necessary documents available to the convict, and a post-mortem report. The court has categorically held solitary confinement as unlawful and called it a form of torture.

There is no definition, though, of what constitutes ‘delay’. It speaks many times of how it is not possible to declare a time limit for dealing with a mercy petition. Chaudhry does not see this vagueness as a problem for future cases in which he intends to use this one as a precedent. He will have to work to show the court that the State delayed the execution without reason, while the Government will have to show otherwise.

Mercy petitions do take time. One files it with the state’s Governor and country’s President. The Union Home Ministry is expected to make a recommendation on it for the President to consider. The President can ask for such a recommendation to be reconsidered, but only once. After that, he must take a decision. To do this, he examines comments made by the Home Ministry and even previous Home Ministers and Presidents. Chaudhry feels this process cannot be fast tracked or bounded in. “Things sometimes have to be left undefined in order to accommodate the differences inherent in each case,” he says.

There is a macabre irony to the case of the 15 who have just escaped the gallows: if their petitions had been dealt with diligently, they might already have been hanged. It is the inefficiency of the process, then, that has saved them.

Death row convicts will now be faced with an existential crisis: whether to hope for delays or promptness in the sealing of their fate. Human rights activists too are faced with a bizarre choice: whether to address the problem of dithering or worry about decisiveness. This riddle is not solvable. The ultimate goal of human rights lawyers is the abolition of capital punishment, but until then, in the words of lawyer Anand Grover, who presented the case on why mental illness is reasonable grounds for commutation, “you cut at the edges first in the hope that the core may fall… It is difficult to directly challenge the death penalty.” Grover has also been instrumental in the reading down of drug trafficking laws that prescribe death.

The way forward could be court judgments that step over each other as we plod along towards a social consensus on capital punishment. Or activists could push for legislative abolishment of the practice. This could be done even at the state level. The state governments of Punjab and Tamil Nadu have been agitating against the hanging of Bhullar and of Rajiv Gandhi’s assassins, respectively, but have made no Assembly move to pass a law to abolish the penalty. “All they need do is pass a law and send it to the President for his signature. If he signs it, there will be no hangings in Punjab or Tamil Nadu. Politicians are misleading the people,” says Rajinder Sachar, retired Justice of the Delhi High Court.

The Central Government could also enact a law that ends this form of punishment. Chaudhry, Grover and Sachar all concur that this is an ideal way out. “Pressure on Parliament is what will work. Activists need to ensure that they don’t let this issue go,” says Sachar. “Just as we got rid of slavery, or accepted women’s equality, so will this important principle gradually develop.”

Indeed, some things have changed in India, and dramatically so. Section 303 of the Indian Penal Code used to confer mandatory death on life convicts who commit murder. This was struck down. The Narcotics Act made death mandatory for traffickers, but in 2010, the Bombay High Court read it down, making it discretionary (a petition on this is pending in the Supreme Court).

There will, of course, be arguments on both sides of the death penalty divide. Some may look at the crimes of the 15 who have been saved and argue that they have no right to live. Sonia and Sanjeev wouldn’t agree. When they were incarcerated in 2001 for killing eight family members, their child was a year old. “Sonia and Sanjeev want to see their child grow. For this sake, they want to live,” says Sanjeev’s brother Kumar. Others like Jafar Ali want to devote the rest of their lives to the pursuit of knowledge. “If my execution has to take place, I would rather read more before my death,” Ali confided to a researcher, “Like Bhagat Singh, I too want to spend my remaining time reading and knowing more about the world.”

The cause is gaining ground. Chaudhry is clear about its aim. “As long as the death penalty exists, we will make it as difficult as possible for the Government to execute anybody,” he says. “My goal is to make the death penalty inoperable.”

Anoo Bhuyan is a journalist based in Delhi. Her webpage is