Abolish Death Penalty India: Final hearing of death-row convict's petition on Thursday

Friday, February 10, 2012

Final hearing of death-row convict's petition on Thursday

J. Venkatesan: NEW DELHI, February 8, 2012

Mercy petition turned down by President after a delay of 12 years

The Supreme Court on Tuesday posted for final hearing on Thursday a Special Leave Petition filed by death-row convict Mahendra Nath Das, whose mercy petition was rejected by the President after an inordinate delay of 12 years and plea for commutation to life imprisonment on this ground was dismissed by the Gauhati High Court.

A Bench of Justices A.K. Patnaik and Justice Swatanter Kumar, without passing any order on his petition seeking stay on execution of death sentence, posted the main SLP, against the High Court order dated January 30, for final hearing on February 9.

Das, in his writ petition, had contended that the delay in deciding his mercy petition by the President and finally giving the assent for the death sentence had resulted in excruciating agony and trauma for almost 12 years for no explainable reasons and this was a valid ground for awarding life sentence.

On Tuesday, it was submitted by senior counsel Shyam Divan, along with counsel Vrinda Grover, that a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya had already listed for final hearing on February 22 the appeals filed by Devendar Pal Singh Bhullar and other connected matters relating to delay in deciding clemency petitions and that the appeal filed by Das be also listed before the same Bench.

However, the Bench said it would hear the matter and issued notice to Solicitor-General Rohinton Nariman and the State of Assam and posted it for final hearing on February 9, when it is expected to take a decision to stay his execution or not.

The last execution the country witnessed was that of Dhananjay Chatterjee in 2004.

In December last, a Bench headed by Justice Singhvi in its order had said: “A perusal of the list enclosed with the information made available by the President's Secretariat on June 2, 2011 shows that as many as 17 mercy petitions were processed. Keeping in view the importance of the issue arising in the writ petition and the fact that a large number of other persons may not be, due to sheer ignorance, able to file petition under Articles 72 or 161 of the Constitution or move the Court as has been done by the petitioner in this case, we request senior counsels Ram Jethmalani and T.R. Andhyarujina of this Court to assist us as amicus curiae.”

The Bench asked the Additional Solicitor-General to place before the Court a compilation containing details of mercy petitions received by the Government of India and the governments of different States and their status as on the date of preparation of the compilation.

The Bench said that the copies of the compilation should be made available to counsel assisting Mr. Jethmalani and Mr. Andhyarujina.

The case of the prosecution was that on April 24, 1996, Mahendra Das beheaded Harakanta Das at Fancy Bazaar and surrendered with the victim's head. He was arrested and put in jail in 1997 after the sessions court ordered his execution.

The Gauhati High Court and Supreme Court upheld capital punishment in 1998 and 1999 respectively. Subsequently, Mahendra Das' family moved a mercy petition to the then President K. R Narayanan in 1999. The plea was finally turned down in May 2011 by President Pratibha Devisingh Patil, setting the stage for his hanging. The High Court, on September 8, 2011, dismissed a writ petition filed by the convict's mother, Kusumbala Das, for commuting her son's death sentence to life imprisonment, holding that she had no locus standi to file it on behalf of her son. Then, Mahendra Das filed a writ petition pleading for commuting the death sentence to life imprisonment since he had already spent about 14 years in jail during the disposal of his petition seeking presidential clemency.

There had been protests against the death sentence of Mahendra Das. Even Amnesty International expressed concern over his imminent execution.

Source: http://www.thehindu.com/news/national/article2869581.ece
accessed on 10th February 2012

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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

Friday, February 10, 2012

Final hearing of death-row convict's petition on Thursday

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