Semantics of Delay – One is Okay, the Other is Not?

There’s a lot one can write about. Right off the top of my head (and Arshu’s) there’s the Hobby Lobby judgment handed down by the SCOTUS on June 30. The Indian Supreme Court declaring that fatwas have no legal standing on July 7. Israel and Palestine have been fighting for more than 10 days now. A plane full of passengers was downed over Ukraine. But none of these things really piqued my interest. Don’t get me wrong, all these things are serious enough to evoke discussions that run night long in the least and life long quite often. What did interest me, and would probably interest the primary readership of this blog was the Indian Supreme Court deliberations on June 16. Particularly of a Constitution Bench sitting in Court Room No. 1. The lead matter I believe is Mohd. Arif @ Ashfaq’s (W.P.(Crl.) No. 77/2014). Mohd. Arif is accused of attacking the Red Fort in Delhi. Three security personnel died in this attack. He was awarded death penalty and the same was stayed by the Supreme Court before the vacations. But my post is not about his case or the need (or not) of death penalty. A lot of work is already happening on that front and I frankly am not particularly pro or anti death penalty.

The present case involve’s Mohd. Arif’s constitutional challenge to Order XL, Rule 3 of the Supreme Court Rules, 1966 (as amended). The rule in brief says that unless the Court otherwise decides, review petitions are to be disposed off without oral arguments in open court. So in essence the petition is sent to the judges (preferably to the same Bench whose judgment is sought to be reviewed) and the Bench either dismisses it or issues notice to the other party and then takes it to the court room from the chambers.

Mohd. Arif has sought commutation of his death sentence into a life sentence and one of the grounds he raises is that gross miscarriage of justice has been perpetrated by not hearing his review petition in open court. The seemingly unassailable logic is that because death penalty cases are “rarest of rare”, review petitions in death penalty cases by necessary implication have to be heard in open court. Right now the discretion is with the court when it comes to what review petitions it wishes to hear in open court. If Mohd. Arif prevails, all death review petitions will be heard in open court.

My problem with this is – the judgment has not been handed down yet but judging from the tone and the tenor of the judges it seems Mohd. Arif’s constitutional challenge will prevail – that this is yet another level of appeal which necessarily means more time which in India translates to delay. Delay, as we all know, is something the Supreme Court considers good reason to commute a death sentence. What the Court does, however, do in its long line of judgments dealing with the issue is sidestep the issue, somewhat conveniently if I may add, of delay attributable to it. The Government delays, commute. President delays, commute. But Court delays, then what?

In commuting the death sentences of former Prime Minister Rajiv Gandhi’s assassins, the Bench remarked that the government can surely be quicker in giving its opinion to the President who too can quickly then decide on the fate of the mercy petition. But I have not come across (if you guys have, please bring it to me notice) any evidence of judicial introspection into its own delays. Why is it that in Triveniben’s case (1988) 4 SCC 574, the Court conveniently limits the scope of assessment of undue delay to a time where all judicial remedies have been exhausted? Why must the President of India decide the matter in less than 2 years (see T.V. Vatheeswaran’s case, (1983) 2 SCC 68) but the trial court can take almost a decade? Or the Supreme Court can add to that decade without any consequence?

If you are looking for an example of the lengthy trial process, look no farther than the Bombay Blast cases. The TADA Court began its work in 1995 and pronounced the sentences in 2006. From 2006, it took the convicts another 7 years before the Supreme Court finally decided their fates. Weirdly enough, less than a year later, one of the person’s whose fate seemed decided, Yakub Memon, has now gotten a stay on his execution and is one of the petitioner’s tagged along in Mohd. Arif’s case.

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On the one hand the Court in Mohd. Arif’s case suggested during the hearing that because of their “rarest of rare” nature these death review petitions must be heard in open court. On the other the Court has an issue with any delay that takes place after the convict leaves its premises with dejection. What I fail to see is how is it that years of dejection between proceedings is not inhumane but the years of dejection waiting at the doors of the President is? In using this logic, is the Court seeking to elevate itself above the other equal organs of state?

There is delay in litigation. We all know that. No one is blaming the Court only for it because as a people we are litigious, unorganized, and like to talk a lot which adds up to more cases, more adjournments and more hearings. But if the Courts can’t fix themselves internally when it comes to these “rarest of rare” cases, what gives them the right to ask the Executive to treat these cases differently. Somebody versed with criminal law could probably answer this for me and the readership of the blog here, but are death cases heard day to day? Are they placed at top of the cause list on a daily basis until they are decided? Are greater costs imposed or lesser adjournments granted during these cases? In fact are they even given priority at the time of formation of Constitution Benches as the one above – death related constitutional issues first, interpretation of badly word provision in the Income Tax Act later?

What the new Solicitor General Ranjit Kumar said in Court is correct – “will there ever be finality to the process of adjudication?”. Today there are calls for review petitions being heard in open court compulsorily in cases concerning death penalty. What precludes an argument stating that there should be a level of review over a review because these cases are after all “rarest of rare”? And that level should also have open court hearings?

The way I see it, the Court is composed of human beings. Different people. Different backgrounds. Different opinions. A lot of them tend to be liberals (using the American Supreme Court judge label). These ‘liberals’ cannot abolish the death penalty – or well they technically can because they are almighty judges but they don’t want to so blatantly encroach on legislative powers. So exception after exception is being carved to assuage their common guilt. But who does this really help sleep at night? The liberal judge or the convict who after twenty odd years of trial now has another shot at review in open court? How is the Court dashing a person’s hopes humane but the President dashing them not? Because if a person is dehumanised by delay, then the Courts will find that they need to work out a better system before they go around asking others to hurry up. And if their delay is the law taking its course, then why isn’t the President’s delay the same?

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