Abolish Death Penalty India: July 2012

Thursday, July 5, 2012

Take these men off death row

In no fewer than 13 cases, the Supreme Court has held the death sentence to have been wrongly given. The mistakes must be corrected before it’s too late. With a dark and chilling feeling we recently read about the wrong Carlos who was executed in the United States for a crime he did not commit. An extraordinary investigation by a Columbia law professor and his team led to the revelation that due to a series of mistakes from investigation to trial, Texas executed Carlos De Luna for a crime committed by Carlos Hernandez. But it came too late for poor Carlos De Luna. What happens if a death penalty is imposed by mistake? If the “mistakes” are still alive unlike poor Carlos, what should be done, especially when the final court of appeal has pronounced the judgments in error? The Carlos case was one of mistaken identity. We have in India 13 mistakes of a different kind. What do Dayanidhi Bisoi, Saibanna, Ankush Maruti Shinde, Ambadas Laxman Shinde, Bapu Appa Shinde, Raju Mhasu Shinde, Rajya Appa Shinde, Surya @Suresh Shinde, Sattan, Upendra, Shivaji @ Dadya Shanker Alhat, Bantu and Mohan Anna Chavan have in common? They are all men waiting to be executed, 13 of them, a horribly ominous number. The judgments by which the Supreme Court had sentenced them to death were declared “per incuriam” by subsequent Benches of the Supreme Court. The words per incuriam mean by carelessness or ignoring the statute or the law. But they will go to the gallows, in the name of the people, because of admittedly erroneous judgments, unless their sentences are commuted by the President. Extraordinary admission It was in 2009 that the Supreme Court made this extraordinary admission of error, but till date nothing has been done to correct the error. This is not about the correctness, or constitutionality or morality of capital punishment. This is about persons being sent to death on the basis of flawed judgments. These 13 men are not men of moment or men who you will remember, they are men unremembered and unsung and abandoned. But that does not mean they can be wrongly executed. In fact it is that much more important that we, governed by the Rule of Law, ensure that their fundamental rights and their human rights are not violated. To understand why the judgments were declared erroneous one needs to go back to 1980, when the Constitution Bench of our Supreme Court in Bachan Singh vs State of Punjab, dealt in detail with the arguments for abolition and retention of the death penalty. It explained why there must be special and compelling reasons for sentencing a person to death: “The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.” The Court held: “While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal.” And “in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender, also.” That the circumstances pertaining to the criminal must be given due weight is reiterated throughout the judgment. Then in 1996 came Ravji @ Ramachandra vs State of Rajasthan which held that “it is the nature and gravity of the crime but not the criminal which are germane for consideration.” This was contrary to the binding dictum in Bachan Singh’s case and hence per incuriam. Judgments that are per incuriam have no precedentiary value and yet the Supreme Court followed Ravji, and imposed the death penalty in subsequent judgments. In 2009, in Santosh Kumar Bariyar vs State of Maharashtra, the Supreme Court noted the error and admitted that, “We are not oblivious that the Ravji case has been followed in at least six decisions of this Court in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriam … Shivaji v. State of Maharashtra, Mohan Anna Chavan v. State of Maharashtra, Bantu v. State of U.P., Surja Ram v. State of Rajasthan, Dayanidhi Bisoi v. State of Orissa and State of U.P. v. Sattan are the decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent.” In addition, Bariyar declared that Saibanna vs State of Karnataka was also decided per incuriam. In Bariyar, the Supreme Court insisted that there be a “strict channelling of discretion” while deciding whether to impose the death penalty. It suggested a sentencing procedure and said that, “it is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14. …. Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of “special reasons”; if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions.” Again, in 2010 in Dilip Tiwari vs State of Maharashtra, the Supreme Court referred to Bariyar’s case and held that though the crime warranted public abhorrence, “...We would, thus, follow Bachan Singh case and the principles therein rather than following the … Ravji case.” But Ravji Rao and Surja Ram were executed — on May 4, 1996 and April 7, 1997 respectively — pursuant to these flawed judgments. There can be no graver miscarriage of justice than this. The Supreme Court’s admission of error was too late for them. They were hanged, not because of mistaken identity as in Carlos’ case, but because of erroneous judgments. Article 21 of the Constitution of India forbids the deprivation of life except according to the procedure established by law. Will the execution of the 13 men, abandoned to die by mistake, be in accordance with law, when the judgments are per incuriam? The law requires that the accused be heard before deciding on the sentence. It is not meant to be an empty formality. Why hear the accused before imposing the sentence if the circumstances of the offender are not germane to the decision making process? The Bachan Singh judgment has laid down the law clearly and the position was reiterated in Bariyar’s case where there is a candid admission that the cases of these 13 men have been wrongly decided. Challenge to credibility The credibility of our criminal justice system and the constitutional promise of equality before law will suffer a terrible blow if they are executed despite erroneous judgments. This article does not raise the larger question of retention or abolition of death penalty. It only argues for the administration of the death penalty in accordance with law. The Supreme Court, even in India where the judges do not sit en banque, speaks as one Court. The voices we hear are not the voices of the different judges; what we hear is the Voice of the Court. Here the Supreme Court has acknowledged and named the judgments which were “in error”. Yet, nothing has been done in rectification. The crimes committed by the 13 men must have been so abhorrent to the Supreme Court that the rarest of rare doctrine was invoked. But the law says that before the death penalty is imposed, the Court shall consider the facts relating to the offender. If they were not considered it was a mistake, but not an ordinary mistake. The authority of the state to carry out the sentences imposed by courts cannot extend to executing admitted errors. If the mistake is corrected by Presidential pardon, the 13 men will not go free. They still have to serve their sentences for the rest of their lives. They will not be pardoned. But we shall not have sent them to the gallows, by mistake. There is no time to lose, for those 13 men and for us too. (Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.) Courtesy : http://www.thehindu.com/opinion/lead/article3606856.ece

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