Abolish Death Penalty India: Abolish death penalty, EU tells India

Monday, October 10, 2011

Abolish death penalty, EU tells India

Death sentences for many Indian fugitives hang in balance as EU supports abolition of death penalty

Iftikhar Gilani
New Delhi

The issues of the execution of Devender Pal Singh Bhullar and charging Abu Salem, a close associate of international fugitive Dawood Ibrahim, under clauses demanding death sentence are set to create a diplomatic row between India and Europe. The European Union, on Monday, declared abolition of the death penalty the world over as one of their human rights and foreign policy objectives to mark 10 October as the World and European Day against the Death Penalty.

In a joint declaration by Catherine Ashton, European Union High Representative for Foreign Affairs and Security Policy, and Thorbjørn Jagland, Secretary General of the Council of Europe, reaffirmed united opposition to the death penalty, and committed to work for its worldwide abolition.

“We consider capital punishment to be inhumane, and a violation of human dignity. Experience in Europe has taught us that the death penalty does not prevent an increase in violent crime, and nor does it bring justice to the victims of such crimes. Any capital punishment resulting from a miscarriage of justice, from which no legal system can be immune, represents irreversible loss of human life,” said the declaration.

Earlier, in a letter to the Union Home Minister P Chidambaram, Ashton had made it clear that the grouping opposes death sentence pronounced to Prof. Devender Pal Singh Bhullar, a Khalistani militant. Bhullar is facing the gallows after President Pratibha Patil rejected his petition of mercy.

Bhullar was deported from Germany on 18 January, 1995, after his application seeking political asylum was rejected by German authorities. The decision to deport him was declared illegal by a Frankfurt court two years later. Bhullar was then arrested by Delhi Police at the airport on charges of falsification of documents. However, he was later handed over to the Punjab Police, who booked him under the Terrorist and Disruptive Activities (Prevention) Act, for engineering bomb blasts at the Youth Congress office in Delhi and elsewhere in Punjab.

Outgoing German ambassador to India Thomas Matussek believed that Germany wouldn’t have deported him, knowing the fate of his case. He said Bhullar’s deportation came as he had not disclosed full fact before German authorities and the court there. “Unfortunately for him and for us, he presented a forged passport and gave totally wrong story. When that was put to court it was clear there was no basis for his asylum and court ruled he could be deported,” he said. “Later on, a real story came out. He hadn’t told us,” the ambassador added. Matussek made it clear that in a similar case in future, the person would not be deported. If this case comes up in Germany now and he tells the full story, we will not deport him,” he maintained.

In the case of Abu Salem, the Portugal High Court has cancelled the extradition order of 2005 under which the gangster was handed to Indian authorities and was brought to India. The High Court had cancelled the extradition order on grounds that the terms and conditions of extradition were violated by Indian authorities.

As per the extradition order, he shall not be given the death sentence and not be put to trial for the offences other than mentioned in the extradition order and not be given a sentence of 25 years. The CBI has already filed an appeal at the Supreme Court in Lisbon, contending that India has strictly adhered to the terms and conditions of the extradition order.

The declaration also called for full implementation of a recent UN resolution, which called for global moratorium on the use of the death penalty, with a view to its complete abolition. The EU is also the first regional body to have adopted rules prohibiting the trade in goods used for capital punishment (and torture and ill-treatment), as well as the supply of technical assistance related to such goods. The EU’s political commitment has been matched by substantial financial support for concrete projects.

Iftikhar Gilani is Special Correspondent with Tehelka.com.
iftikhar@tehelka.com

Source: http://www.tehelka.com/story_main50.asp?filename=Ws101011World.asp
accessed on 10th October 2011

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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

Monday, October 10, 2011

Abolish death penalty, EU tells India

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