Thursday, May 28, 2009

SC censures NHRC for interfering in judicial work

NEW DELHI: The Supreme Court on Friday censured the apex human rights body for interfering in the judicial sentencing system by recommending to the Assam governor to commute the capital punishment awarded to a murderer to life imprisonment. On the recommendation of the National Human Rights Commission, the governor had commuted the death sentence of one Rajnath Chauhan aka Ramdeo Chauhan to life imprisonment. This decision was challenged in the SC by the victim's family.

A Bench comprising Justices Arijit Pasayat and A K Ganguly reversed the governor's order and asked him to reconsider his decision in the light of an earlier judgment of the apex court relating to exercise of the constitutional power on clemency.

The Bench asked a basic question to NHRC -- "Who has violated the human rights of Chauhan?" Terming the human rights body's response, "when any action violated the human rights, there can be violation of the human rights", as evasive, the Bench said such a situation was not conceivable since the cause of the alleged violation of the human rights was the SC's judgment awarding him death penalty.

Terming the recommendation of NHRC as "without sanction of law", the Bench said the proceedings initiated by the apex human rights body were not in line with the procedure prescribed in the NHRC Act. "That being so, the recommendations, if any, by the NHRC are non est," it said.

"The State of Assam has indicated that not only the recommendations of the NHRC but several other aspects have been taken note of. But, the order directing commutation does not indicate any reason. This is contrary to what has been stated by the apex court," said Justice Pasayat, writing the judgment for the Bench.

"We, therefore, set aside the order of commutation of death sentence to life imprisonment and direct reconsideration of the application filed by Chauhan for commutation of sentence," the Bench said.

(Source: TIMES OF INDIA 9 May 2009, 0201 hrs IST, Dhananjay Mahapatra, TNN)

Wednesday, May 27, 2009

Landmark Supreme Court case

The Supreme Court case of Santosh Bariyar v State of Maharashtra was decided on 13 May 2009 in a judgment delivered by Justice S.B Sinha. The case is a landmark decision by the Supreme Court which places strict limitations on the circumstances in which a death sentence may be handed down.

The Supreme Court revisits the Bachan Singh judgment and finds that Bachan Singh requires a mandatory pre-sentence hearing stage in cases where the death penalty may be given. At the pre-sentence hearing evidence on sentencing must be adduced. This evidence must relate not only to the crime, but also the criminal, including his or her socio-economic background. This marks a significant restriction on the sentencing powers of the courts in death penalty cases. In order for a death sentence to be awarded the prosecution must show that the alternative option of life imprisonment is foreclosed. In practice this means that the prosecution must show that the rehabilitation of the defendant is impossible.

Some excerpts of the Santosh Bariyar judgment are set out below:

The Supreme Court highlighted the importance of individualised sentencing in death penalty cases. It then went on to extend the ‘rarest of the rare’ doctrine to the sentencing stage of a death penalty case. The Court emphasized the importance of examining all the evidence in the case at the sentencing stage of the case.

The Court observed that:

“…what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender… Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence”.

One such circumstance is the probability that the accused can be reformed and rehabilitated. The Court, interpreting Bachan Singh noted that:

Bachan Singh laid down a fundamental threshold in the following terms:

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The Court went on to observe that:

“An analytical reading of this formulation would reveal it to be an authoritative negative precept. “Rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of “when the alternative option is unquestionably foreclosed”. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:

that the case belongs to the rarest of rare category;

and the alternative option of life imprisonment will just not suffice in the facts of the case”

The Court then stated that the rarest of rare dictum entrenches the policy that life imprisonment is the rule and death punishment is an exception and that the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.

“The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception”.

The Supreme Court examined a range of cases in which the death penalty had been awarded and a number of cases in which defendants convicted of murder received life sentences and noted the lack of uniformity in sentencing:

“It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle”.

The full text of the judgment is available at: http://docs.google.com/Doc?id=dg5pxzvr_52c2kcrqdp

Monday, May 25, 2009

Article by Death row inmate








This a piece written by yet another inmate on death row...We seriously hope that the system changes

Tears of Blood written by Death row inmate



This is an article written by Santosh Bariyar who was on death row. Very recently his death sentence was commuted to life imprisonment by the Supreme Court.

(Translation of Hindi)
To hang a person to death after death sentence is given and to wait for the punishment to occur are two different things. If we are given death sentence immediately then all the complaints, sadness are gone in a while, even the family cries for some time and then get back to normal life.

But waiting for this sentence for a long period is a sad thing. We can feel the noose around our neck all the while. Sometimes we are also hopeful that we will be able to live life. But there are also times when my whole body shivers when I think of about being hanged. After all what can we do? We have to live life smiling or by crying… atleast for the family we have to smile.

More than us it is our family that goes through this mental agony. They must be thinking day and night when our child will be freed from this trap. Keeping the small child in mind, they make good food during festivals but neither my parents nor my wife can eat a morsel of it. How do they face the neighbours and society everyday? They all must be thinking that, “Their son or her husband must be a ruthless criminal or else why would the State give him death penalty?” our family must be listening to all the taunts of the society and must be crying for us day and night. Thinking about our family my heart cries out tears of blood…but what can we do? We cannot do anything afterall…

We have placed all these sorrows in our hearts and have made them the strength to move on ahead with life. We also have tiny hope that someday our country or the leaders of our country will also take into consideration sinners like us. We will be fortunate if one day we are allowed to return to the society?

Shinde Brothers Death penalty





These are the news reports that appeared in the local Marathi newspaper at Aurangabad (Bhokardan) on 1st May 2009. These reports state that the Supreme Court has confirmed the death sentence of Ankush Maruthi Shinde, Raja Appa Shinde and Raju Mhosu Shinde. This report also mentions the details of the crime.

The other three brothers (Ambadas Lakshman Shinde, Bapu Appa Shinde and Surya aka Suresh Nagu Shinde)were given life sentence however, their life sentence was converted to a death sentence at the Supreme Court. The Judges for this hearing was Justice Dr. Arijith Pasayath and Justice A.K.Mangoki

Thursday, May 21, 2009

Research studies

Death Penalty: A Human Rights Perspective
By: Reena Mary George
Guided by: Retired Justice Hosbet Suresh


Considering that the use of death penalty in India is a threat to fundamental human rights, the topic of this study, “Death Penalty: A Human Rights Perspective” is crucial. The main objectives was to study the impact of death penalty on the social, mental, and physical being of the inmate and to study the perception of opinion leaders on death penalty with reference to human rights. The study also sought to tackle the following questions: What are the living conditions of the death penalty inmates? In what ways does the current operation of death penalty in India conflicts with human rights? What are the alternatives to death penalty? What way can the study give them an opportunity to speak about their lives; their hardships as a death row inmate?

The inmates were contacted after seeking permission from the Director Inspector General. Data from the inmates was collected through prison visits. This study used a case study method. The study includes incerpts by the death row inmates themselves. It also captures the journey of the researcher in an Indian Prison Setting and the opposition by State to carry this study. The findings show that their family, their mental capacities and their physical health have been impacted in a very negative way. It further reveals the living conditions of prisoners in solitary confinement, incidents of torture to extract confession and the death row phenomenon.

It concludes with certain questions raised by the death row inmates. The recommendation is to abolish death penalty however in the interim period; there are certain facilities that the inmates should receive. It spells out that the State should be held guilty of killing people in their custody. India needs to recognise that we have a very bad standing in the world if we treat our fellow beings by hanging them and killing them in the most degrading, humiliating and cruel way. If India has pledged for a larger cause of humanity, why does it not keep her promise? Why should India wait for the rest of the world to shame us into abolishing death penalty?

Wednesday, May 20, 2009

Supreme Court questions deterrent value of death penalty

The Supreme Court on Friday reduced the death sentence handed to anaccused in the 2001 abduction and murder case of national tennis champion S Kartikraj, to life imprisonment, and raised questions about the efficacy of capital punishment. The tennis champ was abducted in Pune by four accused, one of whom, Kumar Gaurav, turned approver. They demanded a ransom of Rs 7 lakh. The accused, who were Kartikraj's room-mates in college, lured him to a particular place on the pretext of giving him a party. When he reached there, they kidnapped him, tortured him for 2 hours and killed him on August 8, 2001. They cut his body into pieces, stuffed them in plastic bags and disposed the bags at different places. A Pune court sentenced Santosh Bariyar to death, and handed life imprisonment terms to Sanjeev and Santosh Roy. In2005, the Bombay High Court upheld the Pune court's order. In the SC, defence lawyers pointed out that neither the trial court nor the High Court had given reasons, which is required under the law, for finding Bariyar's case fit for the extreme penalty of death and handing a lesser punishment to his two friends, who played an equally evil role in the murder.

Holding that life imprisonment is a rule while death sentence is an exception, a bench of Justices SB Sinha and Cyriac Joseph said though the manner and method of disposal of Kartikraj's body was "abhorrent and goes a long way in making the present case a most foul and despicable case of murder" but mere mode of disposal of a dead body may not by itself be made the ground for inclusion of a case in the 'rarest of rare' category for imposing a death sentence. There are other factors to be considered before handing out the capital sentence, the judges held. The apex court cited another judgment dealing with one Ravindra Trimbak Chouthmal from Maharashtra who had killed his wife over dowry. Chouthmal had severed his wife's head and cut her body into 9 pieces and disposed them. The court then expressed doubts over the efficacy of the deterrent effect of capital punishment and commuted the death sentence to one of rigorous imprisonment for life. In the absence of any significant empirical attention to deterrence and severity of the extreme penalty by Indian criminologists, the judgment stated, "We cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right to life and liberty through the imposition of the death penalty." It added, "The goal of crime reduction can be achieved by better police and prosecution service to the same or at least to a great extent than bythe imposition of the death penalty."

(Source: DNA India, 16 May 2009)

Kasab: Nikam for death, Kasab's lawyer prefers lifer

Special Public Prosecutor Ujjwal Nikam and lawyer Abbas Kazmi defending Pakistani gunman accused in November 26 terror attack case are not only in opposite camps but also hold divergent views on capital punishment. While Nikam said capital punishment should be awarded to convicts in serious crimes like terror cases and should be expedited, Kazmi opined that punishment should be reformative. Nikam said death penalty is awarded where there is no scope for reversal and a convict is unlikely to be reformed in society. But if appeals against death penalty are kept pending in courts for a long time, then capital punishment would lose its significance. Kazmi, however, maintained, "I am against capital punishment because if we as human beings cannot give life to anyone then we do not have the right to take life also." "Look at Valmiki who reformed himself from a dacoit to a saint...punishment should be reformative and every convict should be givena chance to reform himself," Kazmi opined. The prison conditions are such that life imprisonment would be the harshest for any convict. In death penalty, a convict does not suffer after he is hanged but in case of lifer, he dies every day in jail because of hardship, he said. The perpetrators of terror attacks should be given stringent punishment,Kasab's lawyer said.

(Source: The Times of India, 18 May 2009)

3 get death for killing friend

3 get death for killing friend

A fast-track court here on Monday awarded capital punishment to 3 youths for murdering their friend out of sheer jealousy as he planned to marry a girl they all fancied. 3rd additional district and sessions judge Jhoolanand Jha awarded death sentence to Gulab, Asmat and Pipiya for killing Mohd Illias, a resident of Kabirpur locality in Masudanpur village under the Nathnagar police station, with an iron rod on April 3, 2009. According to the prosecution, the trio, after stabbing Illias, threw him into a well. His body was later recovered by police. Quoting from the confessional of Asmat, prosecution counsel said the 4 friends, all in the age group of 22-24 years, were eyeing a girl of the locality. However, the girl granted her favours to Illias who wished to tie the knot with her. This infuriated the remaining 3 and they conspired to kill Illias. An FIR in this connection was lodged by Illias' father Mohd Shamsuddin, additional public prosecutor Irshad Navi said.

(Source: The Times of India, 19 May 2009)

Kasab : Death Penalty

Deccan Herald
Kasab's lawyer against capital punishment
Deccan Herald - Bangalore,India
"Looking at the condition of prisons in India, which are worse than hell, I feel life imprisonment would be harsher sentence than death penalty," Kazmi said ...

http://www.deccanherald.com/content/3174/kasabs-lawyer-against-capital-punishment.html

Lethal Injection

Law commission report proposes lethal injection for the death penalty
Vijay Hiremath


India is currently one of only 83 countries retaining the death penalty. In India, the death penalty is imposed by way of hanging or shooting. Recently, the Law Commission of India circulated a document entitled 'Consultation Paper on Mode of Execution of Death Sentence and Incidental Matter'. This document contained a questionnaire polling opinions on methods of execution. The questionnaire however, neither questions the use of the death penalty itself nor whether this method of punishment is necessary and justified.

The 'Consultation Paper' has been confined mainly to the following three issues: the method of execution in the death sentence; the process of elimination of difference in judicial opinion among judges of the apex court in passing the sentence of death penalty; and the need to provide to the accused a right of appeal to the Supreme Court in such cases.

Method of execution
In India, the death sentence is currently executed through hanging or shooting. The Criminal Procedure Code dictates that hanging should be the mode of execution and the Army Act, Navy Act, and Air Force Act dictate that the mode of execution for all persons sentenced to death should be shooting.

In Deena V. Union of India (1983)4 SCC 645, the apex court held that the execution of death should satisfy the following criteria: 1. It should be as quick and simple as possible.
2. The act of execution should produce immediate unconsciousness passing quickly into death.
3. It should be decent.
4. It should not involve mutilation.

Execution by hanging does not meet any of these requirements. There have been several cases reported where hanging has not immediately resulted in a broken neck and thus the convict is left to slowly strangle to death. This strangling results in the convict's eyes popping almost out of his head, his tongue swelling up and protruding from his mouth. In cases where the neck is in fact broken, the rope often tears large portions of the convict's flesh and muscle from that side of the face where the noose is. In many cases, the convict will end up urinating on himself and defaecating before death. The prisoner remains dangling from the end of the rope for 8-14 minutes before a doctor climbs up a small ladder and listens to his heartbeat with a stethoscope and pronounces him dead. Given these facts, it is clear that hanging is neither a quick and simple nor a decent method of execution as it involves mutilation of the body and, in some cases, prolonged suffering and torture before death.

Lethal injection is the method of execution currently being contemplated by the Law Commission. The proposition for using this method was first introduced in a medico- legal journal in New York, USA in 1888. In 1977, this proposition was re-introduced by Dr Stanley Deutsch, of the Oklahoma Medical School. Lethal injection is the primary method of execution used in the USA. As per the description provided in the Consultation Paper of the Law Commission, this method of execution involves the prisoner being secured on a gurney with lined ankle and wrist restraints. A cardiac monitor and a stethoscope are attached to the prisoner, and two saline intravenous lines are started, one in each arm. The saline intravenous lines are turned off, and sodium thiopental is injected, causing the inmate to fall into a deep sleep. The second chemical agent, pancuronium bromide, a muscle relaxant, follows. This causes the inmate to stop breathing due to paralyses of the diaphragm and lungs. Finally, potassium chloride is injected, stopping the heart.

This method, of all those available, appears to be the quickest and least painful. However, the reality is that even this method can result in cruel and unusual suffering. Amnesty International has documented numerous 'botched' executions involving lethal injection. The case of Scott Carpenter, who was executed in Oklahoma on May 18, 1997 serves as a prime example of this. Two minutes after the injection was administered, Carpenter started making noises; his stomach and chest had 'palpitations', and his body suffered 26 violent convulsions in the process. He was officially declared dead only 11 minutes after the injections were first administered.

The role of doctors in all methods of execution is very important. In cases where execution is by hanging, the doctors only check whether the person is actually dead or not. In cases of lethal injection, a medical expert is required to administer the injection and as such the doctor is directly involved in the execution. In these cases, the line between a medical practitioner and an executioner is crossed. Internationally, there have been many medical associations that have taken a stand that no medical practitioner should be asked to take part in bringing about the death of a convict. The British Medical Association held that it was opposed to any proposal to introduce a method of execution that would require the services of a medical practitioner.

The principle behind this reasoning is that the medical profession is intended to save lives, not to bring an end to them. It seems only appropriate that the Indian Medical Association and all other Indian organizations responsible for the practice of medicine in this country should state their position on this issue and convey their sentiments to the Law Commission of India. Our medical practitioners, sworn to protect lives, should not be participating in the execution of any individual, whatever the circumstances. A statement of this kind on the part of medical associations would greatly advance the move for complete abolition of the death penalty in India.

It has been proven through research that the death penalty does not functionally act as a deterrent to violent crime. The crime rate in Canada, where the death penalty was abolished in 1998, has substantially reduced since the abolition. At the same time, in the USA, a country where the socioeconomic climate is very similar to that of Canada but which has retained the death penalty, the crime rate has been consistently on the rise for a number of years.

Unanimity in decision
It is essential, in cases where the penalty is so severe, that there be unanimity among the judges awarding the death penalty. However, there are often differences of opinion among apex court judges in such hearings. Even if only a minority of the judges differ in their opinion, in these cases it is not reasonable to impose the death penalty. Rather, such convicts should be granted life imprisonment. However small the voice of opposition may be among the judges, such convicts should be granted some form of mercy.

Right to appeal
It is of utmost importance that in all cases where the death sentence is imposed or confirmed by the High Court there must be an automatic appeal made directly to the Supreme Court. Every convict who is facing a death sentence is entitled to a chance to appeal his conviction and save himself from the gallows. There are many mitigating circumstances that may have resulted in a person being wrongly convicted and sentenced to death. The accused may be poor and may not have received competent representation at the time of the trial. In any case where the state is electing to execute and thus terminate the life of one of its citizens the decision must be confirmed, as a matter of prudence, by the highest court of the land, and that too, unanimously.

The death penalty has existed since the beginning of recorded history. In all this time, it has never proven to be effective as a deterrent to crime in the way that popular perception would have it. No method of executing a human being can be termed as decent and humane because killing, whether it is done by the state or by an individual, constitutes an inhumane act in and by itself. The only humane solution that the Law Commission should offer the Government of India is the complete abolition of the death penalty.

This summary with comments is carried to generate public debate on the subject. Readers are encouraged to write in with their comments on the summary as well as the main report which is available on the internet athttp://lawcommissionofindia.nic.in/cpds1.pdf

The article was first published in Indian Journal of Medical Ethics in Jul-Sep 2003
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Research Studies



Lethal Lottery: The Death Penalty in India

A report studies Supreme Court judgments in death penalty cases in India from 1950 to 2006 and uncovers many inconsistencies.


THERE is very little officially compiled information on the award of capital punishment in India. This makes the task of understanding the relationship between the punishment and the incidence of crime for which death could be awarded as punishment challenging. Add to this the phenomenon of conflicting judgments coming from trial and high courts and from the Supreme Court itself on the nature of the crimes that can attract this penalty, and the challenge facing the researcher is likely to be insurmountable.

A recent study, jointly produced by Amnesty International India and the People’s Union for Civil Liberties Tamil Nadu & Puducherry, fills the void and exposes the inconsistencies in these judgments. The report was researched and written by Bikram Jeet Batra, consultant to Amnesty International India. Part I, written by Dr. V. Suresh and D. Nagasaila of the PUCL-TN&P, sets the tone for the entire report with its focus on the need to re-examine the death penalty in India.

Part II of the report cites Prison Statistics India 2005, compiled by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, and states that there are 273 persons sentenced to death, as on December 31, 2005. But it does not clarify whether the figure refers to those whose sentences were passed by a trial court or those whose sentences were upheld by a High Court or the Supreme Court or whose mercy petitions were pending or had been rejected. In November 2006, Minister for Home Affairs Shivraj Patil told Parliament that there were 44 mercy petitions before the President, some of which had been pending from 1998 and 1999.

The NCRB states that there were 25 executions between 1995 and 2004. Twenty-four of these took place between 1995 and 1998, pointing to the fact that executions have decreased in the past decade. The NCRB has admittedly no data relating to the death penalty before 1995. The report cites a newspaper article (which itself refers to the 1967 Law Commission report) that suggests that at least 1,422 people were executed between 1954 and 1963 alone. The report notes that the Supreme Court admitted in judgments upholding the constitutionality of the death penalty that there had been no systematic study on whether this penalty was a greater deterrent to murder than the penalty of life imprisonment.

The research for this report involved the study of over 700 judgments reported in law journals between 1950 and 2006. In the first phase ending in 1975, the study found that Supreme Court judgments relied on a rather abstract phrase – “ends of justice” – to disguise the arbitrariness in the use of judicial discretion in sentencing. Thus, judgments regularly concluded with the mere assertion that the death sentence was being commuted or confirmed “to meet the ends of justice”. The study found that there were no clear, systematic principles governing sentencing.

1. errors in consideration of evidence -- most death sentences handed down in India are based on circumstantial evidence alone. In a 1994 Supreme Court appeal, the Court noted the main witness's memory constantly improved from his statement a few days after the incident to the trial three years later

2. inadequate legal representation -- concerns include "lawyers ignoring key facts of mental incompetence, omitting to provide any arguments on sentencing, or failing to dispute claims that the accused was under 18 years of age at the time of the crime despite evidence to the contrary"
anti-terrorist legislation -- concerns include "the broad definition of 'terrorist acts', insufficient safeguards on arrest, and provisions allowing for confessions made to police to be admissible as evidence"

3. arbitrariness in sentencing -- "in the same month, different benches of the Supreme Court have treated similar cases differently, with mitigating factors taken into account or disregarded arbitrarily"

4. failure of the courts and state authorities to consistently apply the procedures supposed to limit the death penalty to the "rarest of rare" cases.

In view of these inconsistencies, the report calls for an immediate moratorium on executions, pending abolition of the death penalty in India. The report will have served its purpose if it leads to introspection within the legislature, the executive and the judiciary on the relevance of the death penalty in India.

This article has been abstracted by reviewing the report "Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-2006 was published by Amnesty International India and the People’s Union for Civil Liberties (Tamil Nadu & Puducherry)and an Article that was published in FRONTLINE Volume 25 - Issue 13 :: Jun. 21-Jul. 04, 2008
by V.Venkatesan