Abolish Death Penalty India: Bombay High Court defers judgement on death sentence in 2003 blasts case

Tuesday, December 13, 2011

Bombay High Court defers judgement on death sentence in 2003 blasts case

Updated: December 12, 2011 15:33 IST

Read more at: http://www.ndtv.com/article/india/bombay-high-court-defers-judgement-on-death-sentence-in-2003-blasts-case-157295&cp

Mumbai: The Bombay High Court has deferred its judgement on the death sentence awarded by a trial court to three accused in the twin blasts at Mumbai's Gateway of India and Zaveri Bazaar in 2003. The blasts, which took place within minutes of each other during the lunch hour, killed 52 people and injured 184.

The trial court had found the three, Ashrat Ansari (32), his aide Hanif Sayed Anees (46) and Hanif's wife Fehmida Sayed (43), guilty of planting powerful bombs in two taxis which exploded on August 25, 2003 at the two busy spots in the metropolis. They were convicted by the trial court in August 2009 under provisions of the Indian Penal Code, the Prevention of Terrorism Act (POTA), the Explosives Substances Act and Prevention of Damage to Public Property Act, and were sentenced to death.

The accused had then appealed against their conviction and sentence in the High Court. Today's High Court order came from a Division Bench of Justice A M Khanwilkar and Justice P D Kode, which also heard the prosecution's arguments seeking confirmation of the death penalty.

The police had said that some Pakistani nationals owing allegiance to the terror outfit Lashkar-e-Taiba (LeT) were behind the attack. The prosecution contended that the conspiracy was hatched in Dubai by Hanif and Ashrat along with another accused, Nasir, who was killed in a police encounter. Police said it was a unique instance of the LeT using members of a family to carry out a terror strike.

Bombay_2003_twin_blasts_accused_295.jpgAccording to the prosecution, on the day of the blasts, Hanif Sayed Anees - a former Mumbai auto-rickshaw driver who had gone to Dubai and returned only that year - and his wife Fehmida, arrived at the Gateway of India in a taxi that they had hired from Andheri station. There they allegedly left a bag filled with explosives in the cab and requested the driver to wait till they returned after having lunch. The taxi driver left the vehicle briefly, when the explosion occurred, the police said.

The police had also arrested the 16-year-old daughter of Hanif and Fehmida, who was present in the taxi, for allegedly aiding her parents. But she was later discharged from the case since she was a minor.

The driver of the taxi, Shivnarayan Vasudev Pandey, became a key witness in the case and identified the accused during the trial.

Ashrat Ansari was charged with planting the bomb which exploded in a taxi parked in Zaveri Bazar, the busy jewellery market. His modus operandi, the police said, was much the same. They said Ansari too left a bag containing explosives in the taxi and had asked the driver to wait.

The three were the first to be arrested in the case, less than a week after the twin blasts. Two more accused, Mohammed Ansari Ladoowala and Mohammed Hasan Batterywala, were arrested later and charged under POTA. Both were, however, discharged from the case in 2008 after the Supreme Court upheld a POTA review committee report that said that there was no case against them.

Another accused turned approver during the course of the trial and revealed the role that the LeT allegedly played in planning and executing the blasts. This accused was pardoned by the trial court after the prosecution requested that he be discharged from the case.

This was one of the few blasts cases in which the police managed to secure a conviction, the others being the 26/11 attack and the 1993 blasts. The motive, the police claimed, was to avenge attacks on Muslims during the post-Godhra riots in Gujarat in 2002.

Source:http://www.ndtv.com/article/india/bombay-high-court-defers-judgement-on-death-sentence-in-2003-blasts-case-157295
accessed on December 13th 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, December 13, 2011

Bombay High Court defers judgement on death sentence in 2003 blasts case

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