[caveat: this post can fall in the rant domain unlike the usual content on this blog]
I must admit, I have not always fairly appreciated the contribution made by the Indian Supreme Court to our legal system. Its not without reason that a general sentiment prevails in country that the Court remains a white knight amidst the prevailing corruption. The problem is, and pardon the recurring rhetoric, we forget that with great power came great responsibility. The bigger problem actually is, that we forget appearances are often deceptive. What appearances? The appearance of the judiciary having more power than it possesses. The Court has taken up the role of investigator, judge and executioner. What it has stopped doing over time, is providing steady and coherent adjudication of legal issues. The multitude of voices emerging from the Court usually lends itself to a noisy cacophony contributing to the chaos. That's not all. This hyper-activism is corroding our democratic process. A graph would plot well how increased judicial activism correlates with decreased public participation in democratic processes. Maybe that's why Justice Frankfurter advised Sir B.N. Rau against investing the judiciary with power to set aside laws made by an elected legislature. He believed in a democracy, that must remain the prerogative of the electorate, and not the decision of an un-elected judiciary.
Yesterday, the Court had donned its executioner hat, and in fine form. After what has been labelled as an "unprecedented day" in its history, it confirmed the death sentence for yet another human being, who was hanged to death merely hours later. Imagine, dying because you managed to convince only 1 rather than 2 other human beings that you deserve to live. We condemned the white men who sent Indians to the gallows. It seems like our condemnation was only with the choice of executioner. Mr Seervai observed the same in context of our retention of the ordinance powers with the executive. In any case, the curious case of death by judgment is the procedure seemingly invented over time by the Supreme Court. Its procedure which the Court itself seems only too happy to ignore. Take this latest episode from the start:
a. The TADA Court issued a 'suo motu' death warrant on 30.04.2015 without giving the accused any opportunity to defend himself. The execution was fixed for 30.07.2015, a decision conveyed to the convict only on 13.07.2015. As opposed to the guaranteed 90 day period for alternate remedies to death row convicts [Shabnam v. Union (WP Crl. 89/2015)], the convict here had only 17 days, for no fault of his own.
b. This interpretation of procedural laws was held by Justice Misra as not being retrospective, thereby setting aside this objection. Its rather settled though, that retrospective operation doesn't concern procedural rules. Just look at how many appeals are getting affected by the recent re-interpretation of Section 65-B of the Indian Evidence Act.
c. Suddenly there is an objection with the second mercy petition, where it is often seen that multiple clemency petitions are preferred by convicts when new grounds emerge. Short shrift was given to the new grounds here - schizophrenia - despite the recent concern shown by the Court to such cases in Shatrugan Chauhan & Ors. v. Union [WP Crl. (55/2013)].
d. The aforementioned case also held that 14 days must pass between rejection of the mercy petition and the execution, for the prisoner to "mentally prepare himself". Justice Misra observed the delay in filing the fresh mercy petition meant staying the execution would be a travesty of justice. So we mean that although someone is certainly being executed, it would be a travesty to postpone that death for a few more days?
e. Given these new grounds, it still took less than half a day (record time in fact) to reject the mercy plea. If any important decision is taken by the executive within hours, would it not normally become suspect for lack of due application of mind? Was there a fair consideration of the fresh grounds?
In hindsight, it appears that the only reason the Court was convened at 3 AM was to ensure no changes were required of the Nagpur execution. Take a moment and go back to the narration of events which you'll find splashed across the news. Forget about the sensationalism. Take a look at that supposedly neutral chimera called the law as it stands today on the issue of executing another person. Just ask yourself: was justice done, and was it seen to have been done if viewed from the eyes of an outside observer? Any law student will tell you that justice must not only be done, but be seen to be done, and I don't think the answer is an easy one here. Our Court is Supreme but not infallible. Days like this are painful, and costly, reminders of this harsh reality.