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The government may be unwittingly entitling condemned prisoners – including Parliament attack convict Mohammad Afzal Guru – to a lesser life sentence by delaying decisions on their mercy pleas, Supreme Court rulings suggest.

The apex court has repeatedly held that excessive delay in executing the death penalty, leaving the condemned prisoner to suffer a “dehumanising effect” of “facing the agony of alternating between hope and despair” renders the capital punishment too inhuman to be inflicted, thus entitling the prisoner to the lesser sentence of life term.

The court rulings assume significance in view of the fact that Guru, who was sent to the gallows by a trial court in December 2002, recently moved the apex court seeking an early decision on his mercy plea.

“It seems to us that the extremely excessive delay in the disposal of the case of the appellant (a condemned prisoner) would by itself be sufficient for imposing a lesser sentence of imprisonment for life,” ruled the apex court in 1971 on an appeal by West Bengal native Vivian Rodricks.

Rodricks was awarded capital punishment in 1964 for a murder committed in 1962.

“It is now January 1971, and the appellant has been for more than six years under the fear of the sentence of death. This must have caused him unimaginable mental agony,” said the apex court.

“In our opinion, it would be inhuman to make him suffer till the government decides his mercy petition. We consider that this now is a fit case for awarding the sentence of imprisonment for life,” the bench ruled.

In 1982, while hearing an appeal by the Uttar Pradesh government against an Allahabad High Court judgment acquitting a convict who had been awarded the death sentence by a trial court for killing three people in December 1972, the Supreme Court refused to impose the death penalty on him due to excessive delay.

“The occurrence took place some time in December 1972, and more than eight years have elapsed since. The present appeal has been pending for five years. We feel that although the murders committed by the convict were extremely gruesome, brutal and dastardly, yet the extreme penalty of death is not called for in the circumstances of this particular case,” said the apex court, awarding life term to the convict identified as Sahai.

Earlier, the apex court had virtually set a maximum limit of two to four years for executing the death penalty awarded to condemned prisoners. In case of a delay beyond this limit, the court converted the death penalty to life sentence.

In 1983, the Supreme Court relaxed the two-year norm for executing death sentences. It, however, upheld the principle that excessive delay in executing the death sentence entitled the condemned prisoner to lesser sentence.

“The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in the circumstances of a given case,” the apex court said in the Sher Singh versus Punjab case.

“A prisoner who has experienced living death for years on end is entitled to invoke the jurisdiction of this court for examining if, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed,” the court said.

Last September, while deciding an appeal by a condemned prisoner who killed his wife and five children in 2006, the apex court said: “It would be open to a condemned prisoner, who has been under a sentence of death over a long period of time for reasons not attributable to him, to contend that the death sentence should be commuted to one of life (sentence).”

The court, in fact, in its September 2009 ruling even advised the government to stick to a “self-imposed rule” to decide on condemned prisoners’ mercy petitions within three months.

“We must say with the greatest emphasis that human beings are not chattels and should not be used as pawns in furthering some larger political or government policy,” said a bench of Justice H.S. Bedi and Justice J.M. Panchal last September.

The latest high profile case which has seen the death penalty being awarded is that of Ajmal Amir Kasab, the sole surviving terrorist in the 9/11 terror attacks. Already questions have been asked about when he will finally be hanged.

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