About Me

My Photo
The idea behind this blog is to collect information on the death penalty in India and make it accessible. We are trying our best to put the latest information on the people who are currently on death row, the status of their cases, their mercy petitions and also the information on any death sentence across the country. Please feel free to write us and give us your suggestions and comments and also any information you have come across regarding the death penalty in India. Our email id is abolishdeathpenaltyindia@gmail.com The blog is currently managed by Grace Pelly, Lara Jesani, Nitu Sanadhya, Rebecca Gonsalvez, Reena Mary George and Vijay Hiremath. Kindly mark copies of the emails to: vijayhiremath@gmail.com reena.mary.george@univie.ac.at

Thursday, May 28, 2015

India: Death in the name of conscience

ACHR PRESS RELEASE
"India: Death in the name of conscience” released today examines the imposition of death penalty to convicts in the name of 'collective conscience of the society' which is often interpreted as the ‘judicial conscience’. The report specifically examines (i) manufacturing of 'conscience' to justify death sentence, (ii) the use of 'conscience' in the judgements imposing death penalty which have already been declared as per incuriam by the Supreme Court, (iii) how 'conscience', “which varies from judge to judge depending upon his attitudes and approaches, his predilections and prejudices, his habits of mind and thought and in short all that goes with the expression social philosophy”, plays out as to whether an accused charged with an offence punishable with death shall live or die, and (iv) inconsitency of the Indian judiciary while considering the factors and circumstances to determine between life and death in a capital punishment case. 

In the post Bachan Singh judgement which upheld constitutional validity of death penalty in 1980, there has not been a single judgement including those declared as per incuriam in which ‘collective conscience’ of the society and/or ‘judicial conscience’ have not been used to justify imposition of death penalty.

The reliance on ‘conscience’ for imposition of death penalty is deeply flawed, fraught with malafides at every stage, and is often manufactured through scapegoating of the dispensable i.e. the poor, socially disadvantaged and those accused of terror offences. They are often unable to defend themselves in all stages, most notably at the stage of the trial held under intense local social pressure, media trial and hostile environment. For terror-related offences, it will not be an understatement to assert that a clear precedent has been set in India wherein justice system is tweaked by the desire for retribution in order to satisfy the socalled ‘collective conscience’ rather than meeting the basic requirements of justice. In addition, some crimes such as the ones against women and children are so gruesome and become politically significant in the light of massive public outrage that it almost becomes indispensable for the State/prosecution to find the guilty, even if it means tweaking justice, to assuage public anger. That the public anger, as shown against the Nithari killings and Nirbhaya gang rape and murder case, is equally directed against the failure of the State and the system as much against the crimes and the criminals, is often forgotten.

The report examines 48 judgements on death penalty pronounced by two distinguished former judges of the Supreme Court viz. Justice M B Shah and Justice Arijit Pasayat, who are currently serving respectively as Chairperson and Vice Chairperson of the Special Investigation Team on Black Money appointed by the Supreme Court of India, to illustrate how ‘conscience’ of individual judges play out the ‘collective conscience’ and/or ‘judicial conscience’. 

Out of the 33 death penalty cases adjudicated by Justice Arijit Pasayat examined by Asian Centre for Human Rights (ACHR), Justice Pasayat (i) confirmed death sentence in 15 cases including 4 cases in which lesser sentences were enhanced to death sentence and two cases in which acquittal by the High Courts were turned to death sentence, (ii) upheld acquittal in 8 cases, (iii) commuted death sentence in 7 cases and (iv) remitted 3 cases back to the High Courts to once again decide on quantum of sentence as death penalty had not been imposed by the High Courts. It is pertinent to mention that out of the 16 cases in which death penalty were confirmed by Justice Pasayat, 5 cases have since been declared as per incuriam by the Supreme Court. 

On the other hand, Justice M B Shah did not confirm death sentence in any of the 15 cases of death penalty adjudicated by him. He rather commuted death sentence in 12 cases, did not enhance life imprisonment into death penalty in any case, did not alter acquittal by the High Courts into death penalty in any case, did not remit back any case to the High Courts on the quantum of sentence and did not deliver a single judgement which was declared as per incuriam. He acquitted convicts in three cases out of which he passed dissenting judgements against imposition of death penalty in two cases. 
Out of these 48 cases, three cases i.e. Devender Pal Singh Bhullar v. State of National Capital Territory of Delhi and Anr, Krishna Mochi and Ors. v. State of Bihar etc and Lehna v. State of Haryana, the Supreme Court benches comprised Justice A Pasayat and Justice M B Shah along with Justice B N Agrawal. In Devender Pal Singh Bhullar and Krishna Mochi & Ors, the majority view comprising Justice Pasayat and Justice Agrawal confirmed death sentence on all the accused in both the cases. Justice Shah, on the other hand, acquitted Bhullar and altered the death sentence on Krishna Mochi, Nanhe Lal Mochi and Bir Kuer Paswan to life imprisonment and further acquitted Dharmendra Singh. However, there was no disagreement between Justice Shah and Justice Pasayat in commutation of death sentence in Lehna v. State of Haryana. 

Though consideration of the aggravating circumstances relating to the crime and mitigating circumstances relating to the criminal as enunciated in BachanSingh judgement cannot be deduced to a zero sum game, the inconsistency in consideration of these circumstances by the judiciary is all pervasive. These inconsistencies stand exposed on perusal and analysis of various judgements of the Supreme Court, inter alia, (i) relating to consideration of convict’s young age for commutation of death penalty, (ii) the benefit of possible reformation or rehabilitation as a ground for commutation of death penalty, (iii) acquittal or life sentence awarded by the High Courts as a ground for commutation, and (iv) circumstantial evidence as a mitigating factor for commutation of death sentence. 

Arbitrariness was the ground for declaring death penalty provided under Section 277 of the Criminal Procedure Act of South Africa as unconstitutional by the Constitutional Court of South Africa in the case of State v. Makwanyano & Anr. The situation and factors that were taken into consideration by the South African Constitutional Court for determining arbitrariness is not dissimilar to India – the mirror reflection is possibly worse in India. If death penalty can be declared unconstitutional on the ground of arbitrariness in South Africa, there is no reason why it should be constitutional in India.[Ends]

Source: http://www.achrweb.org/press/2015/IND03-2015.html [last accessed 28.05.2015]

Explained: In the Supreme Court, some questions of Life and Death

SC will hear Monday petitions challenging death warrants issued against Amroha couple Shabnam and Salim, who killed 7 of her family in 2008. 

Written by Utkarsh Anand | Published on:May 27, 2015 12:53 am

UTKARSH ANAND examines the laws, rules and issues around the death penalty, and the circumstances warranting execution in India.

Which crimes entail capital punishment in India?

Grave offences such as murder, rape with injuries that may result in the death of a victim and a repeat offender, waging war against the State, and terrorism-related offences causing death are some major crimes punishable with death under the Indian Penal Code. Similarly, there are provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital punishment is prescribed as one of the punishments for serious offences. The now-repealed Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) also contained provisions for death sentence.

What has the Supreme Court ruled on the constitutional validity of the death sentence?

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.

While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan Singh vs State of UP (1973), then in Rajendra Prasad vs State of UP (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

What would constitute a “rarest of rare” case?

The principles as to what would constitute the “rarest of rare” has been laid down by the top court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Bachan Singh formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely left upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?

What has been the Supreme Court’s view on mandatory death penalty?

The Supreme Court has always said that the death sentence should be given rarely. In Mithu vs State of Punjab (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional. It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case. The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murderes. It said all murders would come under the ambit of Section 302, where a court would have the discretion to award life term or death sentence.

Similarly, the Supreme Court ruled in State of Punjab vs Dalbir Singh in 2012 that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional. The government moved a Bill to amend the Act, which is currently pending. There are some other subsequent legislation prescribing the mandatory death penalty in drug cases, but the Supreme Court has not yet struck down the penalty as unconstitutional. A pertinent provision in the Narcotic Drugs and Psychotropic Substances Act, 1985, is currently under scrutiny of the apex court.

What are the avenues available to a death-row convict?

After a trial court awards the death penalty, the sentence requires to be confirmed by a High Court. The sentence shall not be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired. If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition and a curative petition, if the review petition is nixed, for reconsideration of the judgment.

A Constitution Bench ruled last year that a review petition by a death-row convict will be heard by a three-judge bench in open court. Such cases were earlier being heard by two-judge benches in the judges’ chamber. A curative petition is still heard in judges’ chambers. Opening another avenue, the Supreme Court, by yet another path-breaking verdict in 2014, ruled that unexplained delay in execution was a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.

Does the executive have a role in clemency?

Yes. If the Supreme Court turns down the appeal against capital punishment, a condemned prison can submit a mercy petition to the President of India and the Governor of the State. Under Articles 72 and 161 of the Constitution, the President and Governors have the power “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”. This power was without any conditions until the last year’s verdict by the Supreme Court, which held that judicial clemency could be granted on the ground of inordinate delay even after a mercy petition is rejected.

How is the execution of death sentence carried out in India?

Execution is carried out by two modes, namely hanging by the neck till death, and being executed by firing squad. The Code of Criminal Procedure calls for the method of execution to be hanging. It states: “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.” In Deena vs Union of India (1993), the Supreme Court adjudicated upon whether the execution of death penalty by hanging by rope is constitutional. It held the method prescribed under the CrPC was valid. Death by shooting is contemplated under the Army Act, Navy Act and Air Force Act. They provide for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death.

Can an order of execution be challenged in a court of law?

Yes. The procedure for carrying out the execution must also fulfill certain conditions as stipulated by the Supreme Court in Shatrughan Chauhan vs Union of India (2014), and by the Allahabad High Court in Peoples Union for Democratic Rights vs Union of India (2015). The guidelines hold that a death-row prisoner must get free legal aid for drafting a mercy petition and, if it is rejected, an intimation to the prisoner and his family is imperative. A minimum 14 days’ notice for execution must be given to let him “prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs”, besides also allowing him “to have a last and final meeting with his family members.” An execution can be stopped owing to a convict’s physical or mental ill health, the top court has held. The death warrants are issued by the trial court.

In the cases of Shabnam and Salim, the validity of the death warrants have been challenged, contending that the warrants did not specify any date of execution. Further, the convicts still had the legal remedies of filing review and curative petitions, apart from moving clemency petitions.

When was the last execution carried out in India?

The last execution to take place in India was in February 2013, the hanging of Afzal Guru who was convicted of plotting the 2001 attack on India’s Parliament. 26/11 terrorist Ajmal Kasab was hanged in November 2012. Prior to these, the last execution was in 2004, when Dhananjoy Chatterjee was executed for the murder and rape of a 14-year old girl. This was the country’s first execution since 1995, when Auto Shankar, who was convicted of six murders in Tamil Nadu, was executed. Therefore, while the courts sentenced more than 1,400 persons to death between 2001 to 2011, only four have been hanged since 1995. Many of these cases are under the consideration of the Supreme Court and the President for clemency. According to data compiled by the NGO Amnesty International, Indian courts handed down at least 64 death sentences in 2014, but no executions took place. A report by the Death Penalty Research Project of the National Law University in Delhi indicated that at least 270 people were on death row after exhausting all remedies available to them under the law.

Source: http://indianexpress.com/article/explained/explained-in-the-supreme-court-some-questions-of-life-and-death/ [last accessed 28.05.2015]

Lucknow: 2 persons get death for triple murders

TNN | May 27, 2015, 01.09AM IST

LUCKNOW: A Basti court on Tuesday awarded death sentence to two persons after finding them guilty of committing triple murders in 2011. The murders were a result of a dispute related to then panchayat elections, police said.

Three persons -- Pankaj Pandey, Shiv Prakash and Ratnakar -- were at a tea stall in Keswapur village under Paikulia police station of Basti on September 26, 2011, when four miscreants came on two motorbikes and opened fire on them. Pankaj died on the spot, while Shiv Prakash and Ratnakar died later in the hospital.

A named FIR was lodged against four persons. Two accused, Dharmendra and Surya Prakash, were convicted in the case, while other two were acquitted by the court lack of evidence. On Tuesday, the court awarded death penalty to Dharmendra and Surya Prakash.

Source: http://timesofindia.indiatimes.com/city/lucknow/2-persons-get-death-for-triple-murders/articleshow/47436140.cms [last accessed 28.05.2015]

ACHR report examines use of 'collective conscience' in death penalties

May 25, 5:40 pm

New Delhi, May 25 (ANI): The Asian Centre for Human Rights ( ACHR) has released a report titled "India: Death in the name of conscience", which examines the imposition of death penalty to convicts in the name of 'collective conscience of the society' which is often interpreted as the 'judicial conscience'.

The report specifically examines the manufacturing of 'conscience' to justify death sentence and the use of the 'conscience' in the judgements imposing death penalty which have already been declared as per incuriam by the Supreme Court. It also seeks to examine how 'conscience', which varies from judge to judge depending upon his attitudes and approaches, plays out as to decide whether an accused shall live or die.

It also highlights the inconsistency of the Indian judiciary while considering the factors and circumstances to determine between life and death in a capital punishment case. The report states that the reliance on 'conscience' for imposition of death penalty is deeply flawed, fraught with malafides at every stage, and is often manufactured through scapegoating of the dispensable.

It further states that some crimes such as the ones against women and children are so gruesome and become politically significant in the light of massive public outrage that it almost becomes indispensable for the State or the prosecution to find the guilty, even if it means tweaking justice, to assuage public anger. The report cites Nithari killings and Nirbhaya gang rape and says that the public anger is equally directed against the failure of the State and the system as much against the crimes and the criminals, which according to the report is forgotten.

The report examines 48 judgements on death penalty pronounced by two distinguished former judges of the Supreme Court, Justice M B Shah and Justice Arijit Pasayat. Both the Judges are currently serving as Chairperson and Vice Chairperson of the Special Investigation Team on Black Money appointed by the Supreme Court of India respectively.

The report attempts to illustrate how 'conscience' of individual judges play out the 'collective conscience' or 'judicial conscience'. (ANI)

Source: http://www.aninews.in/newsdetail2/story217050/achr-report-examines-use-of-039-collective-conscience-039-in-death-penalties.html [last accessed 25.05.2015]

SC stays execution of death sentence of couple who killed 7

Last Updated: Monday, May 25, 2015 - 12:26

New Delhi: Supreme Court today stayed the execution of death sentence of a young woman and her lover convicted for killing seven members of her family, including a 10-month-old baby, in Uttar Pradesh in 2008.

A bench comprising Justices A K Sikri and U U Lalit issued notice to UP government seeking its response and posted the matter for further hearing on May 27. The warrant for execution of the death sentence of Shabnam and her lover Saleem was issued on May 21. The Supreme Court on May 1 had upheld the conviction and death penalty of the couple and later on May 15 delivered a detailed judgement for dismissing the appeal filed by the convicts.

Senior advocate Anand Grover, appearing for Shabnam, asked the court that the matter be heard before any final decision is taken for executing the death penalty. In 2013, Allahabad High Court had upheld the death sentence to the couple awarded by a sessions court in 2010. Saleem and Shabnam were having an affair and wanted to get married but their relationship met with stiff opposition from the woman's family.

On April 15, 2008, Shabnam's entire family, including a 10-month-old baby, was murdered and the woman initially pretended that her house in Amroha district of UP was attacked by unidentified assailants. It came to light during investigation that she had abetted Saleem in the crime as she made her family members drink milk laced with sedatives before the attack and thereafter herself throttled her infant nephew.

Source: http://zeenews.india.com/news/india/sc-stays-execution-of-death-sentence-of-couple-who-killed-7_1601109.html [last accessed 28.05.2015]

Her crime a blow to society's faith in educated daughter as caregiver: SC

Updated: May 18, 2015 17:42 IST
LEGAL CORRESPONDENT

Calling it an abhorrent crime of parricide shaking the Indian society's aspirations of an educated daughter as a caregiver more responsible than a son, the Supreme Court confirmed the death penalty of a young teacher and her lover for the murder of her aged parents and five other family members.

The case dealt with the multiple murders committed by Shabnam, a teacher in Uttar Pradesh, in 2008.

She had incapacitated her entire family by sedating them. Then had held their heads while her lover slit their throats, one after the other. The Supreme Court judgment quotes the prosecution saying that she strangled her 10-month-old nephew with her own hands. After the deed, she pretended to lie down unconscious near her dead father till the neighbours broke into the house.

The court confirmed that she wanted to do away with her family, who was opposed to her relationship, and keep the family property to herself. A trial court convicted and sentenced the duo to death in July 2008. The decision was upheld by the Allahabad High Court in April 2013.

In its recent judgment on their appeals, a Bench led by Chief Justice of India H.L. Dattu said the fact that an educated teacher from a civilised family committed this crime and showed no remorse by itself makes it a 'rarest of rare' crime deserving the death penalty.

“Such a deed as parricide would be sufficiently appalling were the perpetrator and the victims are uneducated and backward, but it gains a ghastly illumination from the descent, moral upbringing, and elegant respectful living of the educated family where the father and daughter are both teachers,” Chief Justice Dattu said.

“Here is a case in which Shabnam, who has been brought up in an educated and independent environment by her family and was respectfully employed as a Shikshamitra (teacher) at the school, influenced by the love and lust of her paramour has committed this brutal parricide exterminating seven lives including that of an innocent child,” the judgment said.

Justifying its decision to uphold her death sentence, the apex court distinguished Shabnam's crime triggered intense indignation in the community as it shattered the modern Indian parents' faith that their educated daughter would care for them in their old age.

“The modern era, led by the dawn of education, no longer recognises the stereotype that a parent would want a son so that they have someone to look after them and support them in their old age. Now, in an educated and civilised society, a daughter plays a multifaceted and indispensible role in the family, especially towards her parents,” the court said.

The court said the accused “wrench the heart of our society where family is an institution of love and trust”. It concluded that the couple's cold-blooded depravity leaves little “little likelihood of reform”.

Source: http://www.thehindu.com/news/national/death-penalty-for-teacher-who-killed-parents-and-family/article7219753.ece [last accessed 28.05.2015]

Supreme Court slaps death sentence on woman

May 16, 2015 - J. Venkatesan


In a new twist to sentencing policy, the Supreme Court on Friday held that no leniency can be shown by courts in awarding death sentence only on the ground that the accused in a brutal killing is a woman. The sentencing policy must be proportionate to the crime committed and the sentence must be the same for man and woman, held a three-judge bench of Chief Justice H.L. Dattu and Justices S.A. Bobde and Arun Mishra, while confirming a death sentence awarded to a woman and her paramour for killing seven members of a family (the case was briefly reported on April 30 when the bench reserved orders).

Writing the judgement, the CJI said, “The Indian legal system today does not differentiate between a son and a daughter — they have equal rights and duties. Indian culture has been witness to for centuries, that daughters dutifully bear the burden of being the care-givers for her parents, even more than a son. Our experience has reflected that an adult daughter places greater emphasis on their relationships with their parents, and when those relationships go awry, it takes a worse toll on the adult daughters than the adult sons.” The bench said, “The principle that when the offence is gruesome and was committed in a calculated and diabolical manner, the age of the accused may not be a relevant factor. Death penalty is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity. This, however, does not seem to be the case herein. The appellant-accused persons’ preparedness, active involvement. It said “Here is a case where the daughter, appellant-accused Shabnam, who has been brought up in an educated and independent environment by her family and was respectfully employed as a Shikshamitra (teacher) at the school, influenced by the love and lust of her paramour has committed this brutal parricide exterminating seven lives including that of an innocent child.”

It said “Of all the crimes that shock the souls of men, none has ever been held in greater abhorrence than parricide, which is by all odds the most complete and terrible inversion, not alone of human nature but of brute instinct. Such a deed would be sufficiently appalling were the perpetrator and the victims are uneducated and backward, but it gains a ghastly illumination from the descent, moral upbringing, and elegant respectful living of the educated family where the father and daughter are both teachers.

Dismissing the appeals against a Allahabad High Court verdict confirming a trial court’s order, the bench said “the crime is committed in the most cruel and inhuman manner which is extremely brutal, grotesque, diabolical and revolting. Therefore, as the instant case requires us to award a punishment that is graduated and proportioned to the crime, we have reached the inescapable conclusion that the extreme culpability of both the appellants-accused makes them the most deserving for death penalty.”

Source: http://www.asianage.com/india/supreme-court-slaps-death-sentence-woman-430 [last accessed 28.05.2015]