Abolish Death Penalty India: Assemblies cannot seek clemency for death-row convicts: Achary

Tuesday, November 8, 2011

Assemblies cannot seek clemency for death-row convicts: Achary

The former Secretary-General of the Lok Sabha, P.D.T. Achary, has warned that the recent resolution passed by the Tamil Nadu Legislative Assembly seeking the President to commute the death sentence of three of Rajiv Gandhi's killers and a similar attempt made by the Jammu and Kashmir Assembly in favour of Parliament attack case convict Afzal Guru might result in “unintended consequences.”

Mr. Achary told The Hindu on Thursday that neither the State government has constitutionally-sanctioned powers in this regard nor can the Assembly perform that role.

“In other words, the Legislative Assembly of a State has no power to request the President to consider a mercy petition in a particular way,” he pointed out.

Commenting on the powers of the State legislatures to pass such resolutions seeking mercy for the convicts even after the President has rejected them, Mr. Achary said: “Passing a resolution by an Assembly seeking Presidential pardon for someone who did an act of terrorism is tantamount to saying ‘He is our terrorist, therefore, please spare him.' This message goes across the world.”

The steps taken by the two Assemblies had caused considerable consternation in the Parliamentary and political circles and raised serious constitutional and political questions.

Under the Constitutional scheme, State Legislatures had been given exclusive legislative powers in respect of items in the State List. They could also legislate on matters in the Concurrent List, except in a case of repugnancy where the law made by Parliament on that subject would prevail.

Jurisdiction

As per rules, a State Legislature could consider a matter through a resolution only if it was within the State's jurisdiction.

Through a resolution a Legislative House calls the attention of the State government to a matter or situation for consideration by that government. Constitutionally speaking, the government could consider the same only if the matter concerns it.

“It seems that there is a certain amount of confusion in the minds of the Assembly Speakers on the competence of State Legislatures to consider such resolutions. Unlike in the U.S., where the residuary powers vest in the States, in India the Constitution vests the residuary powers in Parliament only. So the State Legislature cannot deal with a matter which is outside the area assigned to it by the Constitution.”

“But by no stretch of imagination can we think that the State governments have the jurisdiction to consider the resolutions brought before these two Assemblies seeking Presidential clemency for the convicts and can act on them. In respect of mercy petitions, the President acts on the advice of his or her Council of Ministers. So, what is the role of a State government in this matter? Nothing,” Mr. Achary asserted.

Whatever be the political compulsions, a legislative body is required to function within the framework of constitutional rules and passing a resolution by an Assembly seeking Presidential clemency for a convict is an unprecedented act.

Pointing out that there was an irresistible temptation among the Indian political class to succumb to such pressures, he observed: “Rule of law is what steers the ship of democratic institutions out of the turgid waters of sectarian pressures.”

A precedent, once set, was followed by others in future. Generally, the presiding officers of the legislatures took great amount of care while dealing with issues of constitutional significance, Mr. Achary added.

Source: The Hindu
NEW DELHI, October 27, 2011
http://www.thehindu.com/news/national/article2574161.ece accessed on 8th November 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

Tuesday, November 8, 2011

Assemblies cannot seek clemency for death-row convicts: Achary

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