New Delhi: The abolition of the death penalty, with public opinion steadfastly hostile to it, isn't likely to be an easy objective to be achieved in India in the near future. 

Yet there are many baby steps which the judiciary can take to reform procedures involved in the confirmation of death sentences of convicts that could eventually help erase the biases and prejudices against the abolition of capital punishment in India. 

One such reform was achieved last Monday, November 12, by the Supreme Court bench of Justices Kurian Joseph, A.M. Khanwilkar and D.Y. Chandrachud. This was a case where the special leave petition against the imposition of capital punishment was dismissed in limine by a bench of the Supreme Court in 2006.

In limine dismissal of a petition means that the bench, at the threshold stage itself, does not want to hear the petitioner as it has made up its mind even before the hearing even starts. The bench does not give any justification for such a decision. 

That the Supreme Court has a few times in the past dismissed appeals from death row petitioners in limine must indeed be a cause for concern. That the current judges are inclined to reopen such cases for a fresh hearing is a hope for reform.

In June 2017, a two judge bench comprising Justice Chandrachud and Justice Sanjay Kishan Kaul, while hearing a petition by three convicts challenging summary dismissal of appeals from death row convicts, said that the issue raised by them is “very important and serious”, and needs to be examined. While this petition is pending for a detailed hearing, it appears the other benches have taken the cue and are reopening such cases on their own without waiting for formal guidelines to be framed for the purpose. 

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According to one report, there have been at least nine cases since 2004 in which the Supreme Court has passed such orders, containing just three words, while dismissing the plea of convicts, and leaving them no grounds to challenge the order to seek remedy through review petitions. Surely, if there are just three words – “delay condoned. dismissed” – a convict cannot seek a review of the decision on the only permissible ground of “error apparent on the face of the record”.

In the instant case, Dnyaneshwar Suresh Borkar v The State of Maharashtra, the appeal of the death row convict against the Bombay high court’s confirmation of his death sentence [SLP (Crl) 3323 of 2006) was dismissed in limini on July 21, 2006 by a two judge bench comprising Justice B.P. Singh and Justice Altamas Kabir, with the following words: "Upon hearing counsel, the Court made the following ORDER: 'The Special Leave Petition is dismissed'." Subsequently, a review petition filed by the convict was also dismissed in circulation among the judges. 

On November 12, the three judge bench of the Supreme Court recorded this unfortunate decision of the two judge bench in 2006, and added: 

“We have heard Anand Grover, learned senior counsel appearing for the review petitioner/applicant and Nishant R. Katneshwarkar, learned counsel appearing for the state, who has graciously submitted that the State has no objection if the order of dismissal in limine is recalled, leave is granted in the special leave petition and the matter being heard on merits.” 

The bench thus recalled the 2006 decisions dismissing the convict’s appeal and the review petitions.   Although the current petition is an application for reopening of the review petition, the bench disposed of it by taking on board the convict’s original special leave petition for rehearing. 

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Taking note of the fact that the convict has been in custody for over 17 years, the bench directed the registry to post his appeal for hearing in the first week of February 2019, giving sufficient time for calling for the records from the high court/trial court, in connection with the conviction and sentencing of the convict.  The bench made it clear that the order on suspension of his death sentence will continue to operate till the disposal of the appeal.

In this case, the convict was found guilty of the of the offence of kidnapping and murder of a teenage boy.   While the Bombay high court confirmed his death sentence because it found no hope of his reformation, the Supreme Court bench, on October 31, directed the counsel for Maharashtra to get specific instruction from the jail authorities on the conduct of the convict in jail; whether he is involved in any other case; whether he has acquired any education in jail; his health condition, and medical records, if any; and any other relevant information. It is significant that the bench, on November 12, decided to hear his SLP afresh, after this feedback from the state government.

Slew of petitions from death row convicts on November 20

On Tuesday, November 20, a slew of similar appeals from death row convicts have been listed for hearing before four three-judge benches of the Supreme Court. In one such case on October 31, Ambadas Laxman Shinde and others versus State of Maharashtra, the same bench of three judges (Justices Kurian Joseph, Khanwilkar and Chandrachud) recalled an order passed by another bench in 2009, awarding death sentence to three accused, because the previous bench did not afford an opportunity to them to be heard before it accepted the appeals filed by the state government for enhancement of their sentences from life to death. 

The accused were deprived of an opportunity of engaging counsel and of urging such submissions as they may have been advised to urge in defence to the appeals filed by the state for enhancement, the bench had reasoned. While doing so, the bench extended the relief to other three accused in the same case, whose death sentences had earlier been confirmed by the Bombay high court, and recalled the Supreme Court’s confirmation of their death sentences too, as the evidence is common and the offences related to the same incident, in which the six accused were found guilty.

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The Supreme Court is currently hearing a slew of petitions from death row convicts in conformity with the 2014 constitution bench judgment in Mohd. Arif case making it mandatory for three judge benches to hear review petitions from death row convicts in open court.

While hearing fresh criminal appeals from death row convicts, the Supreme Court is increasingly adopting the approach of 'special sentencing', wherein death penalty is commuted to life sentence without remission.  On November 15, another bench of the Supreme Court adopted special sentencing to save a convict from gallows, saying its reasoning will be given later. In such cases, the human rights defenders have expressed concern that death row convicts cannot be deprived of their right to remission, if their conduct in the jails suggests potential for reformation. 

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