Abolish Death Penalty India: May 2010

Thursday, May 6, 2010

Ajmal Kasab, 26/11 terrorist, gets death

Mumbai: Ajmal Amir Kasab, the Pakistani terrorist who killed scores of people during the attacks on Mumbai in November 2008, was on Thursday sentenced to death by a court.

Special Judge M L Tahaliyani gave Kasab, 22, death sentence on five counts of murder, conspiracy to murder, waging war against the country, abetting murder and committing terrorist activities under the Unlawful Activities Prevention Act.

Kasab was also awarded life imprisonment on five other counts, which included attempt to murder, criminal conspiracy and violation of the Explosive Substances Act.
"In the court's opinion, Kasab has no chance to reform. Keeping such a terrorist alive will be a lingering danger to the society and the Indian government," said Tahaliyani while pronouncing his verdict, three days after he convicted him for the massacre.

The judge cited the example of the Kandahar hijack case in which arrested terrorists were swapped for passengers held hostage. "If Kasab is kept alive, this situation may occur again," he said. “Kasab has been convicted of grievous crime and that he should be hanged by the neck till death,” said Tahaliyani.

Kasab broke down during the sentencing and the judge gave permission to drink water.The court said Kasab had gone to the Lashkar-e-Toiba, the Pakistan militant group blamed for the Mumbai attacks, voluntarily and offered to become a mujahideen.

The court rejected defence lawyer K P Pawar's argument that Kasab had acted on the directions of Laskhar founder Hafiz Sayeed. Pawar’s plea that his client should be given life sentence because he was young and was "blinded by religion" was rejected by the judge.

Kasab was found guilty of 80 offences, including waging war against the nation, which is punishable with the death penalty. Kasab and his associate, Abu Ismail, killed over 70 people at the Chhatrapati Shivaji Terminus, before heading for the Cama hospital, where they killed three senior police officers. As per the law, the death penalty will have to be confirmed by the Bombay High Court. Kasab also has the right to move the High Court against the trial court verdict.

Even if the High Court upholds the judgment, he can go in appeal to the Supreme Court. If the apex court too upholds the sentence, he has the option of filing a mercy petition before the President of India.

Ref: http://ibnlive.in.com/news/ajmal-kasab-2611-terrorist-gets-death-sentence/114699-3.html?from=tn accessed on 6th May 2010

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