Report No. 262

H. Conclusion

6.8.1 The executive's mercy powers cure defects of arbitrary and erroneous death sentences, and provide an additional bulwark against miscarriages of justice. Therefore, cases found unfit for mercy merit capital punishment. Mercy powers are thus a safeguard and necessary precondition for the death penalty.

6.8.2 When the writ courts in pursuance of judicial review powers, on a relative routine basis, find decisions of the executive to reject mercy petitions to be vitiated by procedural violations, arbitrariness and non-application of mind, the safeguard of mercy powers appears to not be working very well.

6.8.3 It is also distressing to note that the death row prisoners are routinely subjected to an extraordinary amalgam of excruciating psychological and physical suffering arising out of oppressive conditions of incarceration and long delays in trial, appeal and thereafter executive clemency. Despite repeated attempts by death row prisoners to invoke judicial review remedies to secure commutations on account of penal transgressions by the executive authorities, the practice of solitary confinement and long delays seem to continue unabated. It is the view of the Commission that the death row phenomenon has become an unfortunate and distinctive feature of the death penalty apparatus in India.

6.8.4 Further, infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners, breaches the Article 21 barrier against degrading and excessive punishment. The lingering nature of this suffering is triggered as soon as any court sentences a prisoner to death, and therefore extends beyond the limited number of prisoners who come close to an execution after having lost in the Supreme Court and in the mercy petition phase as well.

6.8.5 The capital punishment enterprise as it operates in India, therefore perpetrates otherwise outlawed punitive practices that inflict pain, agony and torture which is often far beyond the maximum suffering permitted by Article 21. The debilitating effects of this complex phenomenon imposed on prisoners what can only be called a living death.

6.8.6 While the illegalities pertaining to death row phenomenon in a particular case may be addressed by the writ courts commuting the death sentence, the illegal suffering which the convicts have been subjected to while existing on death row casts a long shadow on the administration of penal justice in the country.