Wednesday, August 31, 2011

Grey area between life and death

CHENNAI: So, legally speaking, what lies between life and death? A lot of grey area, really. Indian criminal jurisprudence does not prescribe death as punishment for a particular offence, however heinous the crime may be. For instance, the maximum punishment provided for in our statute book is not death. Instead, it is "death sentence or life imprisonment."

After holding a person guilty of having committed a heinous offence, a judge has neither legislative policy nor legal principles nor judicial precedents for guidance to impose an appropriate punishment. While highlighting this lacuna, legendary jurist Justice P N Bhagwati says whether it would be a mere life imprisonment or death sentence is decided by the judge's "unguided discretion". In other words, what qualifies as "rarest of rare cases" warranting capital punishment is to be decided on a case to case basis by the judges concerned.

The enormity of this observation would hit us if we apply it on the Rajiv Gandhi assassination case.

For some reasons, the special TADA court here found all the 26 persons guilty of committing a rarest of rare offence and imposed death sentence on all in 1996. The appeals directly went to the Supreme Court. In 1998, the Supreme Court confirmed death only for four and the remaining convicts simply walked free. In 2000 the death sentence of one of these four, Nalini Sriharan, was commuted to life after a state cabinet recommendation.

From being a part of the 26-strong death convict group, now only three are staring down the barrel.

The Amnesty International, while advocating the total abolition of death sentence throughout the world, cites three reasons to do away with the punishment. Firstly, adopting a religious attitude, it says life is a gift of God/nature, and none except God/nature has any right to take it away.

Secondly, citing economic disparity, it says a litigant's inability to afford a good lawyer has direct nexus to the quantum of punishment. The Amnesty cites the fact that about 90 per cent of convicts in various prisons in the world are underprivileged who could not pay hefty fee to a good lawyer. Thirdly, the fallibility of human judgment is a reason enough not to kill a person even by lawful procedure.

There are, however, judicial officers who feel they have been truly judicious and balanced in choosing cases to award death sentence. "In my 28 year service, nine years of which as sessions judge having power to impose capital punishment, I have not exercised the option even once. Not that I am against death punishment. I have not yet come across that 'rarest of rare case'. We are responsible people. I will not hesitate to award death penalty if acase deserves," a sessions judge told The Times of India.

He says the death penalty should remain in the statute book, to be invoked in deserving cases. "Even if it is not used even once, it will instill a sense of fear in habitual offenders and act as deterrence," he says. Incidentally, the Vellore central prison, where the three condemned prisoners involved in the Rajiv Gandhi assassination case are lodged, has a total of six death row convicts and 290 life convicts. A tell-tale evidence that extreme judicial restraint is being exercised before noose is put around a person's neck.

Times of India
TNN | Aug 31, 2011, 08.10AM IST

India court confirms death penalty for Red Fort attack

India's Supreme Court has upheld the death sentence of Ashfaq Arif, a Pakistani man convicted of attacking an army barracks at Delhi's Red Fort.

Arif, a Lashkar-e-Taiba militant, was convicted for masterminding the attack.

He was given the death penalty by a local court. The Delhi high court confirmed the sentence in 2007.

Three people died in the December 2000 attack on the 17th Century fort, one of India's most famous landmarks. The raid strained relations with Pakistan.

Arif was arrested along with his wife, Rehmana Yousuf Farooqui, four days after the raid and found guilty of murder, criminal conspiracy and waging war against India.

The trial court convicted him and six others in October 2005.

He was sentenced to death, while the others received jail terms of varying length.

In September 2007, the high court upheld his conviction, but ordered the release of the others for lack of evidence.

The authorities said two militants entered the Red Fort - then being used as an army garrison - on the night of 22 December, 2000.

The gunmen attacked an army supply depot, killing two soldiers and a guard, before escaping.

The Pakistan based militant group Lashkar-e-Toiba, said it carried out the attack, which strained relations between India and Pakistan.

The Red Fort was the seat of Mughal rule until 1857, when India began to be governed by the British.

Indian troops left the fort in December 2003, after which it was handed over to the tourism ministry.

10 August 2011 Last updated at 08:30 GMT
News South Asia

Tuesday, August 30, 2011

Rajiv Gandhi assassination: HC stays execution of 3 killers

Ten days before they were to hang, three Rajiv Gandhi killers today got a reprieve from the Madras High Court which stayed their execution for eight weeks even as the

Tamil Nadu Assembly in an unprecedented unanimous resolution appealed to the President to reconsider their mercy pleas.

Stopping the execution set for September 9, a Bench comprising justices C Nagappan and M Sathayanarayanan issued notices to the Centre, the state government and the police, observing there had been a delay of over 11 years in the disposal of their petitions seeking Presidential clemency.

Murugan, Santhan and Perarivalan, lodged in Vellore Jail, were convicted and sentenced to death in the case relating to the assassination of Rajiv Gandhi during an election rally at Sriperumpudur on May 21, 1991 by an LTTE suicide bomber.

“The High Court is doing justice. Be sure. They have stayed the execution,” Ram Jethmalani, who pleaded their case, told reporters after the court's interim order.

Jethmalani, Colin Gonsalves and R Vaigai, appearing for the three convicts, contended the “inordinate and inexplicable delay” in disposing of their mercy petitions violated Article 21 of the Constitution (Protection of life and personal liberty).

Shortly before the High Court order, the Assembly unanimously adopted the resolution moved by Jayalalithaa requesting President Pratibha Patil to reconsider the mercy petitions rejected early this month.

A huge crowd outside the court cheered the interim order that was keenly awaited by leaders of several political parties and human rights groups who have launched a campaign to save the lives of the three convicts.

MDMK leader Vaiko, who has been strongly pleading for their release, was also present in court.

The delay of 11 years in deciding their mercy plea was “mental torture” for the convicts, said Jethmalani. “You make them suffer a thousand times. Is this justice?” Jethmalani asked.

In the Assembly, bowing to pressure from various political leaders, Chief Minister J Jayalalithaa moved the resolution urging the President to commute the death sentences of the three convicts.

She said the people of the state were “saddened” by the fact that the death sentence was to be executed soon.

The move by Jayalalithaa came a day after she told the Assembly that she did not have the power to annul the death sentence or put their execution on hold after the rejection of their mercy plea by the President.

“Many political parties have appealed to me to commute death sentences and in order to respect the sentiments of the people of the state, I appeal to the members of the house to pass the resolution unanimously,” she said.

The court order and the Assembly initiative were welcomed by Perarivalan's family members, present in the court.

His mother Arputhammal claimed all three condemned prisoners were innocent and should be allowed to live.

“I was in grief on whether I would get my son back. But Amma (Jayalalithaa) has passed a resolution and has given me joy. She has given me hope of bringing back my son. I am extremely happy. I don't know how to express my happiness. I am thankful to all those who worked for this,” she told reporters.

“Everyone has struggled for my son and this support should be there till my son is released,” she said before breaking down.

Perarivalan's father Kuyildasan said the stay was due to the efforts of the people and lawyers.

Welcoming the adoption of the resolution in the Assembly, he said different parties have come together to request the President to reconsider the mercy petitions.

Perarivalan's sister said she had immense faith in the judiciary. “This is only a stay. What we want is complete release.”

The three convicts were sentenced to death in 1999, along with Nalini, who is married to Murugan. After Nalini gave birth to a baby girl in jail, her death sentence was commuted to life following a request made by Sonia Gandhi.


Indian Express
Posted: Tue Aug 30 2011, 11:23 hrs

Sunday, August 14, 2011

Kasab moves SC against death penalty

NEW DELHI: Mumbai terror attack convict Ajmal Kasab has challenged his conviction and death sentence in the Supreme Court, which has asked for trial court records.

"The Supreme Court received a petition from Kasab through Mumbai's Arthur Road Jail authorities two months back and the registry has asked for the trial court records from the special judge," apex court sources said.

The Bombay High Court had on February 21 upheld the trial court's order convicting Kasab as well as its order for acquittal of alleged Indian co-conspirators Faheem Ansari and Sabauddin Ahmed.

Source: Times of India
TNN Jul 30, 2011, 02.03am IST

Indian SC upholds death sentence for LeT militant

NEW DELHI: India came down heavily on captured Lashkar-e-Taiyaba (LeT) militant Mohammad Arif who was involved in an attack inside the Red Fort in New Delhi in December 2000 that resulted in the killing of three Indian Army personnel.

One of the few terrorist attacks in the heavily fortified heart of Delhi, Arif – a Pakistani national – was the leader of the group that masterminded the attack. He was captured along with his wife within days of the attack. His trial was conducted in a lower court that awarded him the death penalty.

On Wednesday, the Supreme Court – beyond which there is no appeal – confirmed the punishment, upholding the death sentence.
Arif had appealed to the Delhi High Court in 2007 against the death sentence handed by a lower court; however the High Court, too, confirmed the sentence.

On December 22, 2000 two Lashkar militants sneaked into the Red Fort and opened fire on guards of the Seventh Battalion of Rajputana Rifles killing two jawans and one civilian. On December 26, Arif alias Ashfaq and wife Rehmana Yusuf Farooqui were arrested.

A trial court in November 2005 awarded Arif the death sentence and Additional Sessions Judge OP Saini also fined Arif INR435, 000.

The Delhi High Court in 2007 upheld the trial court’s life sentence for Arif, and acquitted the other accused, including his Indian-born wife.
The others had served their sentences by then.

Saini handed down the judgment to Arif under various sections of the Indian Penal Code for waging war against India. Arif’s wife was sentenced to seven years’ rigorous imprisonment for sheltering her husband “before and after the incident”. A father-son duo – Nazir Ahmed Qasid and Farooq Ahmed Qasid – were sentenced to life and fined INR100,000 for criminal conspiracy in the case. Justice Saini also sentenced Babar Mohsin Baghwala, Sadaqat Ali and Matloob Alam to seven years’ imprisonment for their complicity in the attack.
The LeT militant was sentenced to death under Section 121 (waging war against the country) and Section 302 (murder).

The Capital Post
Washington DC based Daily Newspaper

Former Indian PM Gandhi's killers to hang

NEW DELHI — India's president has rejected mercy pleas from three men convicted of the 1991 assassination of then prime minister Rajiv Gandhi, paving the way for their execution, an official told AFP on Thursday.

The appeal, sent to President Pratibha Patil by the men -- Murugan, Santhan and Perarivalan, all known by single names -- was their last hope of escaping the hangman's noose.

All three belonged to Sri Lanka's Liberation Tigers of Tamil Eelam (LTTE) militant group, which was accused of plotting the May 21, 1991 murder of Gandhi by a female suicide bomber.

Gandhi had become India's youngest ever prime minister after his mother, former premier Indira Gandhi, was assassinated in October 1984, and ruled until losing an election five years later.

The shredded clothes and the shoes he was wearing when he was killed while on an election tour in the southern of the country 20 years ago remain on display in a museum in the Indian capital.

"The rejection (of the clemency petitions) happened last week after the president returned from a foreign tour," presidential spokeswoman Archana Datta told AFP.

Although the Supreme Court upheld the original death penalty verdict for the three convicts it later commuted the capital punishment to life in prison for Nalini Sriharan, an Indian Tamil woman who was also convicted.

The three men had sought a presidential pardon after the top court's verdict.

The LTTE, wiped out by Sri Lankan forces in 2009 following a bloody offensive by government troops on the island, always denied its hand in Gandhi's assassination.

But the militant group's now-slain leader Velupillai Prabhakaran went on to honour the assassin's father as a "great person who contributed to the Tamil cause."

Gandhi's killing was seen at home as retaliation for a 1987 Indian government pact with the Sri Lankan government to disarm the guerrillas, who had been trained and armed by New Delhi in the early 1980s.

After that pact, the LTTE fought Indian troops deployed to the island by Rajiv Gandhi's government to supervise the accord. India withdrew its troops after 32 months in which it lost 1,200 soldiers at the hands of the rebels.

Ten Indians and nine Sri Lankans sentenced to death by a lower court for their involvement in Rajiv Gandhi's assassination were freed after they were acquitted by the Supreme Court in 1999.

The last execution in India was in 2004 when a 41-year-old former security guard was hanged for the rape and murder of a 14-year-old schoolgirl in Kolkata city.

An anti-death penalty lobby group condemned the rejection of the clemency petition.

"It has been well established that capital punishment does not help to reform society," said Kirity Roy of the privately-run South Asia Network Against Torture and Impunity.

"If India wants to portray itself as a civilised nation and aspires to fulfil its obligations to international norms then it must abolish the practice," Roy told AFP by telephone from Kolkata.

"There were 12 rapes almost immediately after the guard's hanging and so it proves the death sentence is not a deterrent," argued Roy, urging President Patil to re-think her decision.

In May, Patil rejected a mercy petition from a murderer in the northeastern state of Assam, leaving the state scrabbling to find a hangman.

Many of the small number of known hangmen nationwide have either died or retired in recent years.

By Pratap Chakravarty (AFP)