Abolish Death Penalty India: Govt questions SC's power to reopen death penalty cases

Monday, July 8, 2013

Govt questions SC's power to reopen death penalty cases

Dhananjay Mahapatra, TNN Jul 7, 2013, 06.08AM IST

NEW DELHI: The Centre is all set to legally lock horns with the Supreme Court by questioning the court's powers to call for judicial scrutiny the President's exercise of constitutional power to grant pardon or commute sentences of condemned prisoners.
"The decision of the President under Article 72 of the Constitution, either accepting or rejecting a petition, is a sovereign act. This sovereign act is performed after the courts have given their verdict and this sovereign act cannot be subjected to review by the Courts," the Centre said.

"Entertaining of an appeal after the President has rejected the mercy petition also amounts to reopening the case. Once the mercy petition has been decided by the highest constitutional authority, the President of India, the courts should not allow reopening of the case, as the case has achieved its finality (in judiciary). Otherwise, reopening of the cases would be unending and it may never attain finality," it said.
The Union government said this in its petition in the Supreme Court seeking review of the May 1st judgment, in which the apex court commuted the death sentence awarded to double murder convict M N Das to life sentence on the ground that there was inordinate and inexplicable delay on President's part to reject his mercy plea.
While saying that it had fully explained the decade-long movement of Das' mercy plea file both in the ministry of home affairs and the President's Secretariat, the Centre, for the first time, questioned the apex court's jurisdiction to reopen cases of death penalty after rejection of mercy pleas by President.
Smarting under the repeated judicial scrutiny of President's decisions to reject mercy pleas on ground of delay, the Centre's review petition also aimed to curb the increasing trend among condemned prisoners to move HCs and the apex court after rejection of their mercy pleas by Governor or President.
A little over two months ago, the SC had rejected Delhi Bomb blast convict Devenderpal Singh Bhullar's plea for commutation of death penalty to life sentence. However, it accepted Das' plea on the ground that there was an 11-year delay in deciding his mercy plea by President and also that it was not properly appreciated.
The Centre also did not forget to rub in the delay on judiciary's part in deciding the murder cases, from trial stages and appeals through the HC up to the SC. Why it is that adverse view was taken of the delay in executive side in deciding the mercy plea and not that of the delay in deciding murder cases and appeals in judiciary? it asked.
"No distinction can be drawn between the delay during the trial and the delay in considering the mercy petition by President. It cannot be said that delay during the trial is justified and the delay by President in consideration of the mercy petition is not justified," the Centre said.
It said as soon as the SC rejects an appeal against death sentence, the condemned prisoner goes into mental agony recognizing that he had inched closer to the hangman's noose. But since the execution is stayed during the pendency of mercy pleas, delay in deciding such mercy petitions actually keeps alive the ray of hope for life in the condemned prisoner. So, delay in deciding mercy pleas does not cause any additional mental agony for the condemned prisoner, the Centre reasoned.
Source : http://articles.timesofindia.indiatimes.com/2013-07-07/india/40420757_1_mercy-plea-mercy-petition-m-n-das

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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

Monday, July 8, 2013

Govt questions SC's power to reopen death penalty cases

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