Abolish Death Penalty India: Death sentence is judicial murder, says judge in Rajiv killing

Sunday, October 16, 2011

Death sentence is judicial murder, says judge in Rajiv killing

K.T. Thomas the ex-Supreme Court Judge of India who wrote the judgement in the Rajiv Gandhi Murder case has said to India today that 'death sentence is judicial murder'. Though the statement is welcome from a ex-supreme court judge of India, it is surprising that why did he agree to award death sentence along with the other judges in the Rajiv Gandhi murder case. The question remains whether Justice K.T. Thomas had a similar belief regarding death sentence while he was still a supreme court judge or it changed after he retired as a judge. If he had a similar belief about death sentence then he should have made it clear in his judgements and if it has changed in the recent past after his retirement the people of this country deserve to know what made him change his mind on death sentence.
Below is the article which appeared on the website of India Today.
The above comment is authored by Vijay Hiremath
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Death sentence is judicial murder, says former Supreme Court judge K.T. Thomas, who headed the bench that pronounced death punishment to three conspirators in Rajiv Gandhi's assassination.

"Death sentence is no punishment," Thomas, 74, said. "It is a judicial murder committed with the protection of the society."

According to Thomas, world opinion is turning against the death penalty with more and more countries abolishing it.

"In India too the debate is active among rights activists, judicial circles and civil society," Thomas said. "But ultimately, it is a political decision."

If he was against the death sentence, why did he agree to awarding death penalty to the three Rajiv killers -- Murugan, Santhan and Perarivalan?

"Because I took oath to discharge my duties as per the Constitution and the prevailing laws," replied the former judge. "Whatever extreme may be my individual views, as a judge, I had to function as per the existing laws."

He said punishment had a three-fold objective: reformation, deterrence and retribution. The rule of retribution -- a tooth for a tooth, an eye for an eye -- is increasingly considered uncivilised.

"Then is the case of reformation. If a person is eliminated where is the opportunity for reformation?" he said.

Experience and studies have proved that death punishment have not worked for deterrence too, Thomas said.

He recalled the experience of erstwhile princely states of Cochin and Travancore where death penalty was abolished in 1940 but restored when they became part of the Indian republic in 1950.

Records show that there were a higher number of murders in the 1950s than in the 1940s when there was no capital punishment. "So the theory of deterrence is not valid in many places and periods", he said.

He said the simple test for death sentence was visualising our own children in the situation. "Our children commit mistakes and we want to reform them through punishments. But do we want to kill them?"

In 1999, the three-member supreme court bench comprising Thomas, Justice D.P. Wadwah and Justice S.S.M .Quadri had awarded death punishment to Murugan, Santhan, Perarivalan and Murugan's wife Nalini in the Rajiv Gandhi assassination case.

Thomas had dissented on death punishment to Nalini while the other two judges were for capital punishment for all four.

Nalini's sentence was commuted to life imprisonment as President Pratibha Patil accepted her mercy petition. The petition was recommended by Rajiv's widow and Congress president Sonia Gandhi.

"I found Nalini was acting like a robot and did not know till the last hour that she was to kill Rajiv Gandhi at Sriperumbudur in Tamil Nadu on 21st May, 1991." Thomas said.

If both Murugan and Nalini were to be killed their child would have been an "orphan made by law", he added.

With the President rejecting the mercy petition of the trio, they were to be hanged September 8 this year. However, the Madras High Court September 1 stayed their execution for eight weeks. The Supreme Court will hear a plea to transfer the petition on October 19 .

"It was my misfortune to have presided over the bench which gave the death penalty to the four accused. But I had to discharge my duties," Thomas said about the 1999 verdict.

"The debate over the suitability and ethics of the death sentence is picking up in India," he said. The Supreme Court had deliberated the issue during the Bachan Singh case in 1983 and directed that death penalty should be awarded only in the 'rarest of the rare cases', he recalled.

Thomas, a practising Christian, had courted controversy recently when he said at a function in Kochi that the "smear campaign" that Rashtriya Swayamsevak Sangh (RSS) was responsible for the assassination of Mahatma Gandhi was "baseless". RSS chief Mohan Bhagwat was also present at the function.

An alumnus of the C.M.S. College, Kottayam, he has often criticized Christian educational institutions "indulging in commercial practises" and has suggested that minorities should give up the special rights given by the Constitution.

Source : http://indiatoday.intoday.in/story/rajiv-gandhi-killing-death-sentence-judicial-murder/1/155142.html

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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

Sunday, October 16, 2011

Death sentence is judicial murder, says judge in Rajiv killing

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