'Can't Set Outer Time Limit For Exercise Of Executive Power Of Pardon': Karnataka High Court Refuses To Commute Death Sentence

Dr.Yug Mohit Chaudhary along with Advocate B N Jagadeesha appearing for the convict challenged the executability of the death sentence on four grounds: (i) Violation of Article 21 of the Constitution of India; (2) Delay in adjudicating the mercy petition; (3) Petitioner being put in solitary confinement and (4) Scope of judicial review.

Background

On 26.10.2006, the Sessions Judge (VII Fast Track Court, Bengaluru) convicted the petitioner. On 27.10.2006, the Sessions Court passed a sentence of death against the petitioner. On 04.10.2007, the High court confirmed the conviction order, On 01.02.2011, the Apex Court of India dismissed the petitioner's Criminal Appeal and upheld the sentence of death penalty. On 08.02.2011, the petitioner's mother filed a mercy petition before the President of India, which came to be ultimately rejected on 12.05.2013. Parallelly, on 01.03.2011, petitioner filed a review against the judgment passed by the apex court. The same came to be dismissed on 03.10.2016. Following which the accused approached the high court on 03.10.2016 with a prayer for commutation of death sentence into life imprisonment.

Arguments

"Due to the inordinate delay by now the petitioner is a vegetable than a person and hanging vegetable is not a death penalty. As between funeral fire and mental worry it is the latter which is more devastating for the funeral fire burns only the dead body and mental worry burns the living ones. As per the Golden Rule Standard, the mercy petitions ought to be decided within a period of 90 days," it was argued.

It was also stated that no part of the delay can be attributed to the petitioner, as the entire responsibility for the delay is on part of the respondent - Government.

Further, it was submitted that the petitioner has been kept in solitary confinement, contrary to Section 73 of the IPC, since the imposition of the death sentence by Sessions Court on 27.10.2006, which is against the expressed dicta of the Apex Court in the case of Sunil Batra v. Delhi Administration and in the case of Shatrughan Chauhan And Others v. Union Of India.

The counsel also contended that the executive authorities have failed to consider the petitioner's mental condition, wherein even according to the Doctor of the State Government the petitioner has been diagnosed with depression and psychosis and that he has been undergoing medical treatment.

Union of India Opposed the plea

Additional Solicitor General M.B.Nargund contended that the mercy petition was disposed of within five months by the President.

He submitted that the mercy petition was first forwarded to the State of Karnataka for the consideration by its Governor under Article 161 of the Constitution of India. The same was done after the review petition was dismissed the Governor rejected the mercy petition by order dated 06.06.2012. The said order was forwarded to the President of India, who by order dated 12.05.2013, rejected the mercy petition.

Nargund submitted, "Hence, the question of inordinate delay of more than two years, three months and seven days i.e. 827 days as contended by the petitioner is a fallacy and would not hold any water."

ASG further informed the court that though the convict was initially diagnosed with depression and psychosis, on receiving treatment he was found to be fit.

The State government counsel also submitted that the petitioner was not kept in solitary confinement but was housed in a high security cell. He placed on record details of the petitioner having used the library, canteen and details of visitors meeting him in prison.

Findings

At the outset, the Court made it clear that in Indian jurisprudence, examination of 'excessive delay' claims is relatively less liberal than the position of law as it obtains in Europe and the Common Wealth. 

Relying on the case of Triveniben v. St. Of Gujarat, the Court said,

"The Courts in India are constrained to limit the delay computation to delays occasioned on account of faults attributable to the State only. It excludes the 'systemic delays' in prosecution of mandatory and discretionary appeals that are so characteristic of the Indian judicial system; it also ignores time spent on prosecution of a review petition, however legitimate the claim for review may be."

In the instant case thus, the time spent on disposal of judicial proceedings was thus excluded. However, there is a certain period of overlap between time spent in consideration of mercy petition and time taken for disposal of a writ petition filed by the convict herein.

"While the former is accountable delay, the latter needs to be excluded from the delay computation analysis...There has been no authoritative precedent brought to our notice on harmonizing the conflict...The law as it stands today does not take notice of delays prior to final termination of the judicial process. It is only delay (attributable to the executive) in disposal of mercy petition which can be taken into account," the Bench observed.

It thus came to a conclusion that there has been avoidable delay of nearly a year and a half, more so on part of the State Executive than the Central Executive. However, given the overlap between judicial proceedings and disposal of the mercy petition, the Court said, "the delay claimed by the petitioner, howsoever inordinate would disappear into the background and cannot be taken notice of."

Further, it said, "In the facts of the present case before us, it would be noticed that the judicial process came to an end only on 03.10.2016 when the petitioner's case, Review Petition Nos.135-136/2011, was dismissed by the Hon'ble Apex Court. Even if we were to decide that the sentence of death was finally confirmed on 01.02.2011 when the Hon'ble Apex Court dismissed the appeal filed by petitioner in Criminal Appeal Nos.285-286/2011, still, the delay of 1 year 5 months after making necessary exclusions cannot be said to be excessive or inordinate."

It also refused to set a standard benchmark on the appropriate length of delay which entitles a convict to seek reduction of penalty from death sentence to life imprisonment.

On the issue of solitary confinement, the Court noted,

"Separation is different from segregation that amounts to solitary confinement. If a person is segregated and kept individually in such a way that he has other prisoners in his view, though at a distance, it cannot be said that he is in solitary confinement. Petitioner cannot blow hot & cold at the same time as he claims to be mentally sick and when he is given necessary treatment and subject to a separate call for his own protective custody, it cannot be said that he is put in solitary confinement."

Finally the court held, "There is no excessive, unexplained, inordinate delay attributable to the respondents in deciding the mercy petition. There is no violation of the petitioner's right under Article 21 of the Constitution of India. All the relevant and crucial materials required for deciding the mercy petition were placed before His Excellency, the Governor and His Excellency, the President of India and nothing has been kept out of consideration. Petitioner cannot be said to have been kept in solitary confinement."

Case Title: B.A.Umesh v. The Union of India

Case No: Writ Petition No.53944 Of 2016

Date Of Order: 29th Day Of September, 2021

Appearance: Dr.Yug Mohit Choudhary, A/W Advocate Jagadeesha B.N, for Petitioner; ASG M B Nargund, for R1; Advocate G.V.Shashi Kumar, for R2 To 4.

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