A DELAY of two years in rejection of the mercy petition by the President to the date of execution is unprecedented in India, said an advocate, arguing for two death row convicts, who are set to be executed on June 24.
The two men, in their 30s, were sentenced to death in the 2007 rape and murder of a BPO employee from Pune. The duo has urged the Bombay High Court to strike down the rejection of their mercy petitions and commute their death sentence.
The duo was convicted and sentenced by a sessions court in Pune in March 2012. The sentence was upheld by the High Court in September 2012 and subsequently by the Supreme Court in May 2015. Maharashtra Governor C Vidyasagar Rao had rejected their mercy petition in April 2016. The President rejected their mercy petition in June 2017.
One day of delay after rejection of the mercy petition is equal to five days of delay before rejection of mercy petition. After rejection of the mercy petition, you don t know whether you will be executed this afternoon or the next day. You don t know if someone coming to your cell is going to tell you it is time for your execution. Your constant companion in the cell is death, the advocate told the court. Such pain and torment is a punishment far worse than death. This mental agony has wrecked havoc on the physical, mental and emotional well being of the petitioners, stated the plea.
Justice B P Dharmadhikari and Justice Swapna Joshi asked Advocate General Ashutosh Kumbhakoni if the state government conceded that there was a delay in the execution of the two petitioners as they have contended. Kumbhakoni told the court that a mere delay cannot be a reason for commuting the death sentence of the petitioners but the delay will have to be inordinate and unexplained .
Affidavits in reply to the petition were filed by Umaji Pawar, Superintendent of Yerwada Prison; Narayan Karad, Deputy Secretary, state home department (prisons); and Raju Vaidya, Deputy Secretary (judicial), Ministry of Home Affairs.
The three affidavits denied the petitioners claim of inordinate delay in their execution and prolonged solitary confinement. In custody since November 2, 2007, the duo has contended that of the 11-and-a-half years that they have spent behind bars, they have been kept in solitary confinement in the Phansi Yard of the Yerwada Central Prison. The delay of 1,509 days, the two have stated, includes a delay of 774 days in disposal of their mercy petition when guidelines laid down by the apex court have stated that mercy petitions should be decided in 90 days.
Vaidya s affidavit stated, …it is totally denied that the petitioner has spent seven years in solitary confinement, ie in Phansi Yard at YCP (Yerwada Central Prison), Pune. In fact, Phansi Yard is an antiquated and colonial description of the security yard since it would house only death-row prisoners in the colonial times. However, over time, it has undergone several changes in terms of structure and composition.
He stated that it was false to claim that the petitioners were kept in solitary confinement even for a day, much less for the period alleged by the duo.
… it is unequivocally stated that the home department has perused every course of action available, and there has not been any delay much less deliberate or inordinate delay on the part of the state government as such, either in intimating the petitioner, or in forwarding the documents to the GoI, or even in considering the mercy petition dated 10/7/15 of the petitioner or even taking any step towards the execution of both the convicts in issue, Karad s affidavit stated. The arguments in the case will continue on Thursday.