Abolish Death Penalty India: ‘We should hang Home Minister’

Wednesday, August 19, 2009

‘We should hang Home Minister’

The HC is currently hearing the appeal against the death sentence awarded to Leena (r) and Deepti Deosthali(l) for the 2006 murder of Dr Deepak Mahajan

Miffed that police could not record ransom calls made in Dr Mahajan murder case due to faulty machinery, Bombay High Court says the government’s lax attitude is to blame for ill-equipped force

The Bombay High Court on Tuesday came down heavily on the State Government for failing to equip the police well enough to investigate crimes.The Division Bench of Justice JN Patel and Mrudula Bhatkar was hearing the appeal against the death sentence awarded by the Pune sessions court to Leena Deosthali and her daughter Deepti, the two women accused in the Dr Deepak Mahajan murder case.

The judges were irked when the prosecution admitted that the transcripts of the ransom calls made to the deceased doctor’s family during his kidnapping were not available, as the police machinery tapping the phones was faulty and could not record the conversations.

Justice Patel noted that the police force is ill-equipped because of the lax attitude of the government. Citing the example of the unavailability of bulletproof jackets for officers during the Mumbai terror attacks, he remarked, “Because they (police) are not provided with the necessary equipment, we have to suffer events like 26/11.” He held the Home Department responsible for the flaws in police investigations and quipped, “We should hang the Minister for Home.”

Advocate Ashok Mundergi assured the court on behalf of the prosecution that satisfactory answers would be given over the lapses in police investigations pointed out by the court.

FAST TRACK INJUSTICE

The Division Bench was also especially peeved to find that the Pune sessions court had not examined key witnesses such as the police sketch artist who first prepared a sketch of the two accused. Arguing for the prosecution, advocate Ashok Mundergi told the court that lack of time in a fast track trial did not allow the court to wait for the sketch artist, who was unavailable at the time of summons. Justice Patel responded, “A fast track trial does not mean you deliver a judgment without examining witnesses just because it has to be fast track. It is against the principles of justice. In that case, there is no point in having fast track courts.”

THE CASE SO FAR

The Pune sessions court in 2007 found Leena and Deepti Deosthali guilty of the 2006 murder of Dr Deepak Mahajan, and awarded the mother-daughter duo the death sentence. The HC began hearing the appeal last August. Earlier this year, the case was sent back to the Pune sessions court for cross-examination of 25 of the 46 witnesses, as the accused did not have a lawyer in the sessions court. However, the Pune court upheld the sentence. The Deosthalis are currently lodged in the Byculla women’s jail and have refused a lawyer for the HC hearings as well. However, the court has appointed Rohini Salian as the amicus curiae.

(Source: MUMBAI MIRROR BUREAU
19th August 2009)

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Wednesday, August 19, 2009

‘We should hang Home Minister’

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