[dropcap]I[/dropcap]N his tenure of six years as a judge at the Supreme Court, Justice A K Sikri has undoubtedly had a hand in influencing the development of death penalty jurisprudence in India. Over the course of 11 death penalty cases that J Sikri adjudicated, almost all of them have had important repercussions, both positive and negative.

The death penalty cases that J Sikri has been part of include three acquittals (involving nine people), five commutations, one confirmation and two writ petitions. From Shabnam v Union of India and Md Arif v Registrar, Supreme Court – cases which had positive implications on the fundamental right to fair trial of death row prisoners to Dnyaneshwar Suresh Borkar v State of Maharashtra which pushed the needle forward, ever so slightly, on death penalty sentencing, J Sikri’s tenure has been eventful.

Md. Arif itself had an inherent contradiction. The judgment excluded a right of open hearing to prisoners whose curative petition had already been rejected (the main petitioner being the only one in such a circumstance). This confusion itself is a different but not new story about the arbitrariness that plagues death penalty jurisprudence in India.

In September 2014, a few months after the then President, Pranab Mukherjee, rejected six mercy petitions, the Supreme Court delivered the 4-1 decision on Md Arif v Registrar, Supreme Court. Justice R F Nariman authored the judgment on behalf of Chief Justice R M Lodha (as he was then), Justices J S Khehar, and A K Sikri with Justice Jasti Chelameshwar dissenting. Md. Arif instated the right of death row prisoners to have their review petition heard in open court on the question of guilt as well as punishment. The right of an open hearing was extended, retrospectively, to cases where the review petition had already been dismissed in chambers, allowing for the dismissed review petitions to be reopened and reheard. The immense importance of reopening a review petition was realised only on 5 March, 2019 in the Shinde case where six prisoners, after having spent more than a decade on death row, were finally acquitted by a bench of Justices Sikri, Abdul Nazeer and M R Shah.

The illogicality of in limine dismissals

Md Arif itself, though, had an inherent contradiction. While it was later cured in January 2016, the judgment excluded a similar right of open hearing to prisoners whose curative petition had already been rejected (the main petitioner being the only one in such a circumstance). This confusion itself is a different but not new story about the arbitrariness that plagues death penalty jurisprudence in India.

In limine dismissals essentially mean that the petitioner, including a death row prisoner, is given no opportunity to make substantive arguments about the case. In in limine orders, the court provides no reason for dismissing a case…An absence of meaningful checks against possible errors at every stage of the judicial process could result in wrongful executions.

Nearly six months after Md Arif, on January 06, 2015, J Sikri, along with Chief Justice H L Dattu (as he was then) and Justice R K Agarwal dismissed, in limine, two death penalty cases, involving four accused (Babu, Jitendra and Sanni in one case, and Babasaheb Maruti Kamble in the other) who were charged with rape and murder of a minor. In limine dismissals essentially mean that the petitioner, including a death row prisoner, is given no opportunity to make substantive arguments about the case. In in limine orders, the court provides no reason for dismissing a case.

And herein lies the twist. In a review petition the court is to substantively re-examine its own judgment and reasoning but, in cases of an in limine dismissal, there is no reasoned judgment to review. In the case of these death row prisoners, it was a three word order, “Delay condoned. Dismissed”. To lay bare the contradiction, while death row prisoners now had a fantastic due process right at a later stage, no such protections existed at the earlier stage – rendering the later protection entirely infructuous. As inherently problematic as these irregularities are, they become infinitely magnified in death penalty cases, when an absence of meaningful checks against possible errors at every stage of the judicial process could result in wrongful executions.

Almost four years later after their appeal was dismissed in limine, in November 2018 review petitions filed by Kamble and Jitendra were heard by J Sikri along with Justices Ashok Bhushan and Indira Banerjee. This proved to be an opportunity for J Sikri to recognise and rectify this rather illogical anomaly of in limine dismissals in death penalty cases, in light of the decision in Md Arif. In Kamble’s review petition, J Sikri (who authored the judgment), using the requirement of providing “special reasons” before imposing the death sentence as the fulcrum, held that death penalty criminal appeals cannot be dismissed without providing reasons for such dismissal. He, however, restricted the rule to only the question of punishment, leaving open the space for dismissing the question of guilt without reason. The death sentence of both Kamble and Jitendra was commuted to life without the possibility of remission for 20 years.

J Sikri (who authored the judgment), using the requirement of providing “special reasons” before imposing the death sentence as the fulcrum, held that death penalty criminal appeals cannot be dismissed without providing reasons for such dismissal. He, however, restricted the rule to only the question of punishment, leaving open the space for dismissing the question of guilt without reason.

This new rule continues to sit uncomfortably with Md Arif, which allows for open hearing on both conviction and sentencing. By limiting the requirement of reason to the question of sentence, Kamble solves the problem on one end, and potentially deepens the problem at another end, in as much as the willingness to commute might obfuscate the urgency of evaluating conviction evidence in death penalty cases. An urgency J Sikri must be well acquainted with given that he was part of the bench which acquitted eight people, including six in the Shinde case.

Irreconcilable contradictions

Interestingly, the same bench on the same day as the acquittals confirmed the death sentence of Khushwinder Singh – the only one to be confirmed by the Supreme Court since July 2018. The confirmation is a departure from the extremely well-reasoned judgments delivered by the bench not only in the acquittal cases but also in Dnyaneshwar Suresh Borkar (February 2019), whose sentence was commuted. Borkar substantially engages with and forwards the death penalty sentencing framework, particularly on reformation. But in Khushwindar Singh, the visible lack of engagement by the bench with mitigating factors and reformation is most puzzling, particularly when contrasted with Borkar.

Justice Sikri’s legacy on the death penalty remains uncertain not only because there are internal tensions within the jurisprudence he has helped develop, but also because of the crime exceptionalism that is far too common in our adjudicatory process.

In Shabnam v Union of India (May, 2015), a bench comprising Justices Sikri and U U Lalit, quashed two death warrants. Giving content to procedural due process rights of death row prisoners, the case lays down, as an absolute rule, conditions which must exist for a valid warrant of execution to be issued. One of the conditions requires that the death row prisoner as well as their lawyer be given sufficient notice for meaningful representation when the warrant is issued. The very same year, however, merely a few months later, this right and absolute rule was violated when Yakub Memon’s death warrant was issued. Memon, an accused in the 1992 Bombay blast case, neither got the benefit of this rule nor was the violation given serious thought in the flurry of proceedings the day before his execution. Despite the importance of this rule as procedure established by law, and despite agreeing that the warrant was not issued in full compliance with the procedure, the Court upheld the warrant. Memon was executed on July 30, 2015.

Justice Sikri’s legacy on the death penalty remains uncertain not only because there are internal tensions within the jurisprudence he has helped develop, but also because of the crime exceptionalism that is far too common in our adjudicatory process.

J Sikri’s tenure at the Supreme Court is strangely emblematic of the death penalty jurisprudence in India. Along with positive and principled moments of clarity reside irreconcilable contradictions.

[Maitreyi Misra is a Research Associate at Project 39A, National Law University, Delhi. Views expressed are personal.]