Sentences show India gets tough on rapists

By Udayan Namboodiri for Khabar South Asia in New Delhi April 15, 2014 

A pair of court rulings in high-profile rape cases sends a strong message that Indians no longer tolerate sexual violence against women.

In a landmark decision, a court in Mumbai on April 4th sentenced three men to death for taking part in separate gang rapes of two women at an abandoned textile mill last year. That same day, a high court in Kerala handed prison sentences to two dozen men acquitted in 2005 of charges in a 1996 multiple rape case. That 16-year old victim was raped at least 41 times over a 40-day period. 

"Times have become hard for rapists in India," Maharashtra State Women's Commission chairperson Sushiben Shah told Khabar South Asia. The Mumbai ruling marked the first case in which repeat offenders received a capital sentence under newly toughened Indian anti-rape laws. The legal changes followed outcry over the December 2012 case of a 23-year-old medical student who died after being gang-raped aboard a New Delhi bus. Four of the woman's six assailants received death sentences, a juvenile received jail time and prior to trial, a sixth alleged assailant was found dead of suspected suicide in his cell.

Now under the Indian Penal Code's revised section 376(e), repeat rapists can face capital punishment.

"There needs to be zero tolerance for such incidents,"Judge Shalini Phansalkar-Joshi said in handing down the sentences in Mumbai, according to AFP. "A loud and clear message needs to be sent to society." The judge sentenced Vijay Jadhav, Kasim Bengali (also known as Mohammad Qasim Shaikh) and Mohammed Salim Ansari to death for their roles in an August 22nd, 2013 gang-rape of a female photojournalist at the abandoned Shakti Mills, and a previous July 31st, 2013 gang-rape of a telephone operator at the same site. They are appealing their sentences.

Four men and a minor all took part in the photojournalist's attack. The fourth, Rehman, received a life sentence. The juvenile is being tried by a special court. Mohammed Ashwaq Sheikh, another man who took part only in the late July gang-rape, also received a life sentence, AFP reported. "This has certainly sent a positive signal even though it is an open question whether capital punishment is desirable in a civilised country," National Commission for Women chairperson Mamta Sharma told Khabar. 

Slow justice for one

Though the victims of the Mumbai gang rapes got swift justice, such was not the case for the then-teen victim of the 1996 case which originated in Suryanelli in Kerala's Idukki District. On April 4th, a three-judge state High Court bench overturned the lower court's 9-year-old acquittal by sentencing main perpetrator Dharmarajan, to life in prison. The panel also sentenced two co-defendants to 10-year terms. The remaining 21 received terms of at least four years each.

"The miscarriage of justice in the Suryanelli case was a blot on the nation's image," Brinda Karat, a former Communist Party of India (Marxist) MP, told Khabar. "Now finally the hapless victims of rape can hope for justice."

Source: http://khabarsouthasia.com/en_GB/articles/apwi/articles/features/2014/04/15/feature-01 [accessed 24 April 2014]

The politics of executions in India

By Bobby Naqvi | Special to Gulf NewsPublished: 17:19 February 24, 2014

 Indian Muslims and people of Guru’s home state of Jammu and Kashmir have accused the Congress government of playing dirty politics by fast-tracking his execution. This allegation has some substance.

 “The 23 years of life in a prison and that too on death row and the solitary isolation has almost snatched everything from us and all we have is life in our body and hope in our heart. Please release my father and get him back to me, you’ll be hailed as saviours.” Priyanka Harithra,Daughter of Nalini and Murugan

 “Guru was killed by the Congress for political gains. They sacrificed him for votes. If after so many years, their sentence could be commuted, what was the hurry in killing him?” Tabassum, Widow of Afzal Guru.

These two statements are a telling commentary on how Indian politicians and governments adopt double standards while dealing with Muslim and non-Muslims sentenced to death by a court of law. The first is from a mercy petition written by Priyanka Harithra, the 22-year-old UK-based daughter of Nalini and Murugan who were awarded death penalty in 1999 for assassinating former prime minister Rajiv Gandhi on May 21, 1991. The mercy petition this week was addressed to Rajiv’s widow Sonia and son Rahul after Supreme Court commuted Murugan’s death sentence over a technicality. Nalini’s death sentence was commuted after she was pardoned by Rajiv’s family members on humanitarian grounds. Harithra pleaded with Sonia and Rahul to release her parents.

Harithra’s mercy plea came after Supreme Court on February 18 commuted death sentence of Rajiv’s killers, including Murugan. While commuting the death sentence, the court cited federal government’s delay in dealing with all the four convicts’ mercy petitions. Soon after this verdict, a regional politician and chief minister of Tamil Nadu, J. Jayalalitha announced her government will release the four convicts, all from Tamil Nadu. Her decision, months before general elections, is seen as an attempt to gain support of Tamil nationalists who sympathise with the assassins and blame Rajiv for sending Indian army troops to crush the Tamil rebellion in Sri Lanka.

The second statement is of the widow of a Muslim, Afzal Guru, who was hanged for his role in the December 2001 Parliament attack. After the court commuted Murugan’s death sentence, Guru’s widow Tabassum questioned why her husband was hanged when Rajiv’s killers who were sentenced way back in 1999 have now been pardoned. Guru was sentenced to death in 2003 and the verdict was upheld by the Supreme Court in 2005. In a secret operation on February 9, 2013, the Congress-led UPA government executed Guru and buried him inside Tihar jail where he was lodged since his arrest. The hanging came as a surprise because Guru was 25th on the list of death convicts and the government deals with mercy petitions from death convicts in a chronological order. Clearly, 43-year-old Guru was treated as a special case for some inexplicable reasons and his hanging and burial was shrouded in secrecy. Moreover, the government failed to inform the family members, Guru’s widow Tabassum received a letter about the hanging two days after TV channels broke the news. Tabassum, who has a 13-year-old son, was also not informed about the rejection of her mercy petition. One year on, Tabassum is still pleading for her husband’s body and belongings.

Impressing Hindu nationalists

Indian Muslims and people of Guru’s home state of Jammu and Kashmir have accused the Congress government of playing dirty politics by fast-tracking Guru’s execution. The hanging, they feel, was an attempt to impress Hindu nationalists and a crude attempt to check the rising graph of right-wing opposition Bharatiya Janata Party which had been demanding swift execution of Guru. This allegation has some substance.

To get a sense of this complex game of politics of death practiced by governments and politicians, it is necessary to go into the background of Guru’s sentencing. Throughout his trial, Guru maintained his innocence and denied he had any role in attacking Parliament in which a dozen people were killed. The Supreme Court, in a controversial, order rejected Guru’s appeal and upheld the death sentence. The order, considered controversial by Muslims and human rights activists, makes an interesting read: “Thus the conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment… The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender.”

Thus, the Supreme Court, while admitting there was no direct evidence to convict Guru, went ahead to uphold his death sentence in order to “satisfy the collective conscience of the society”. Guru’s trial in lower court also failed to prove beyond reasonable doubt that he was indeed involved in the conspiracy to attack parliament. Here is a paragraph from an article written by human rights activist and celebrated author Arundhati Roy a day after Guru was hanged: “The trial in the fast-track court began in May 2002. The world was still convulsed by post 9/11 frenzy. The US government was gloating prematurely over its “victory” in Afghanistan. In the state of Gujarat, the massacre of Muslims by Hindu goon squads, helped along by the police and the state government machinery that had begun in late February, was still going on sporadically. The air was charged with communal hatred. And in the parliament attack case the law was taking its own course. At the most crucial stage of a criminal case, when evidence is presented, when witnesses are cross-examined, when the foundations of the argument are laid, Afzal Guru, locked in a high-security solitary cell, had no lawyer. The court-appointed junior lawyer did not visit his client even once in jail, he did not summon any witnesses in Guru’s defence, and he did not cross-examine the prosecution witnesses. The judge expressed his inability to do anything about the situation.” Like his hanging, the trial was also swift and fast-tracked.

In contrast, Murugan, his wife and two others — all Hindu Tamils — were sentenced to death for killing Rajiv and 14 others in a suicide bombing. Successive governments never showed any haste in deciding on their mercy pleas. This week, 15 years after they were convicted, the Supreme Court commuted the death sentence blaming the government for delay in deciding mercy petitions. In another case, Sikh terrorist Devinder Pal Singh Bhullar was sentenced to death for carrying out a bomb blast in 1993, killing nine. The government rejected his mercy petition in 2011 but is yet to execute him, possibly to avoid a backlash from the Sikh community.

One can speculate that the government dragged its feet on politically sensitive cases of Rajiv killers because the assassins enjoyed sympathy of Tamil Hindus. Guru’s case was handled with ruthless swiftness because he came from Kashmir, a state in conflict with Indian troops. More significantly, hanging of a Muslim terrorist brought cheers from Hindu nationalists and right-wing politicians. After all, the Supreme Court condemned Guru to die in order to satisfy the nation’s conscience and the government could not have denied Indian people a moment of national glory.

Source: http://gulfnews.com/opinions/columnists/the-politics-of-executions-in-india-1.1295186 [accessed 24 April 2014]

The danger in precedents

February 26, 2014 01:33 IST 

Opinion: The Hindu 

It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty The recent judgments of the Supreme Court have shifted the focus back to capital punishment in India. The jurisprudence of death penalty is as inconsistent as it is confounding in most cases. The recent cases have, however, tried to usher in greater clarity in dealing with the death penalty law and its execution. The decision of the Tamil Nadu government to set free the assassins of former Prime Minister Rajiv Gandhi has added another dimension to the debate. In the light of these developments, it is important to take stock of the evolution of capital punishment in India while evaluating the probable ramifications of the Tamil Nadu government’s decision. 

The ‘rarest of rare’ test The ‘rarest of rare’ test was laid down by the Supreme Court in 1980 in the Bachan Singh case. The judgment also made it incumbent on the state to adduce sufficient evidence that there is no scope of reform for the accused in the slightest. Further, an analysis of the aggravating and mitigating circumstances must be made to ascertain if death alone is the most appropriate punishment in a given case. Therefore, the significance of the judgment also lay in seeking to strike a balance between the crime and the criminal in doling out the sentence by the courts. However, as was pointed out by the Court in Santosh Bariyar (2009), many subsequent cases have focused only on the crime while looking away from the criminal while awarding the death penalty. 

The Supreme Court felt in Gurvail Singh (2013) that the time was ripe to develop the legal position to be socially more accommodative, while moving a step away from the “principled stand” as propounded in the Bachan Singh case. Gurvail Singh has been referred to in the Ram Singh case, dealing with the December 16 Delhi gang rape, where the sessions court took note of the exceptional depravity and extreme brutality of the crime which aroused “intense and extreme indignation of society.” The ‘extreme misery’ suffered by the victim and ‘grave impact’ of the crime on the ‘social order’ were stated as the reasons behind the ruling. The result is that there is a tilt towards the crime as compared to the criminal. 

On the other hand, the Supreme Court in the Sushil Sharma case held that death penalty is entirely avoidable given that there are grounds of reform available for the convict. In the case of Shatrughan Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture. However, the case of Devinder Pal Singh Bhullar took the death penalty jurisprudence to another level in ruling that there was a difference in treatment to be meted out to convicts under the Indian Penal Code and those convicted under special terror laws. For the latter, undue delay cannot be a valid ground to commute the death penalty. In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down per incuriam. It is noteworthy as it buttresses the extremely high limit set to achieve the threshold of ‘rarest of rare,’ albeit implicitly. 

From the above discussion on judicial precedents, it is evident that there is great subjectivity involved in deciding what constitutes the gravest of circumstances that could justify the state to take away life. The Tamil Nadu government has decided to set free the convicts in the Rajiv Gandhi assassination, exercising its power under Sections 432 and 435 of the Code of Criminal Procedure, 1973. This assumes further significance as Section 435 mandates consultations with the Union government when the conviction is under central laws. Acknowledgment of the grave injustice in the undue delay in execution by the highest court of the country does not wash away the fact and gravity of their crime that has been proved beyond reasonable doubt. In deciding to release them, the Tamil Nadu government is surely entering a risky territory which may set loose a politically-charged atmosphere and set a dangerous precedent. 

The governments concerned must handle such cases with astute political wisdom and maturity, as it is their responsibility to ensure citizens’ safety. If there is relaxation shown to a criminal convicted of something as deplorable as the assassination of the former Prime Minister, then it begs the question as to what could be an effective deterrent for criminals in the future. This stand puts our internal security at peril, when communal and left wing forces are on the rise, in addition to the sustained terror threats from across the border. Against this backdrop, it is important to consider the cases of Ajmal Kasab and Afzal Guru. Both these cases marked a break in the so-called self-imposed moratorium on death penalty by the Indian judiciary. And both cases involve matters of national security and instances of terrorism. 

This itself proves that accompanied with executive expediency, death penalty has been justified for the perpetrators of grave criminal and terrorist activities — at least till the time that it exists in our legal system. Retention of death penalty A key question to ask at this juncture is whether it is too ambitious to expect a correlation between the crime rate and death penalty in a jurisdiction where the wheels of justice are eternally slow. For us to be able to fairly introspect on the justifiability of the death penalty, a lot rests on the executive promptness in dealing with existing cases. By creating an additional ground for commuting the death sentence solely because of the lack of executive promptness, the Supreme Court may be subtly pushing India into a territory of no capital punishment, but the legislative intent is ostensibly at deviance. 

India voted against the Record of Votes on the U.N. General Assembly Moratorium Resolution, 2012, just as it had in the past. The Human Rights Council recommended in its Universal Periodic Review 2012 that India should establish an official moratorium on execution. While trying to move towards abolishing the death penalty completely, India should also commute all death sentences into life imprisonment terms and ratify the Second Optional Protocol to the ICCPR. Both of these recommendations India did not agree with. There seems to be greater judicial clarity in cases of mandatory death punishments in India. Recently, the Bombay High Court ruled in the India Harm Reduction Network case that the mandatory death penalty for drug offences was “unconstitutional.” However, instances of specific legislations still upholding death penalty still subsist. For example, the Piracy Bill has a provision of death penalty, as does the Narcotic Drugs and Psychotropic Substances Act of 1985. Clearly, the Union Legislature seems decided about retaining capital punishment, at least for the time being. 

Every time a crime captures the national imagination, there is a hue and cry to overhaul the legal system, and bring in place more stringent norms. But what is often not really emphasised is the lax implementation. There is hardly a sustained clamour for a better managed police system of the country. There is no serious effort at a fast-paced judiciary to clear the immense backlog of cases. It is this laidback implementation that is often hidden behind the grandiose idea of ‘rule of law.’ Accountability of public institutions and functionaries needs to be strengthened. It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty. 

(Abhishek Tripathy is a lawyer.) 

Source: http://www.thehindu.com/opinion/op-ed/the-danger-in-precedents/article5726541.ece [accessed 24 April 2014]

Rajiv’s Killers Versus Afzal Guru

SRINAGAR, WEDNESDAY, 25 RABI-AL-THANI 1435 ; 26 FEBRUARY 2014 CE 

- RIYAZ AHMAD

The contrast also compares the two democracies, Tamil Nadu, J&K.

There were two developments that riveted our attention last week. And the mayhem in the state Assembly was not one of them despite the injury to a PDP legislator or the slapping of a marshal by one of the party’s legislators. One, was the commutation of the death sentence of the former Prime Minister Rajiv Gandhi’s killers to the life imprisonment by the Apex Court. And second the Tamil Nadu Chief Minister Jayalalitha’s decision to release all the seven of them and the ensuing confrontation with centre. The clash made for a gripping political drama and heady television. But Kashmir was hooked for a different reason. 

One, that the killers of a former prime minister of India and a member of the ruling dynasty who were on death row for the past eleven years were granted a due recourse to law and their plea accepted by the court. Second, Tamil Nadu CM dramatically deciding to set them free and setting a three day deadline for the centre to respond. 

New Delhi went into a tizzy, objecting to the release. Supreme Court stayed the move but that was not what was important. The important thing was that even the killers of a prime minister of India, if they are not from Kashmir, can expect not only a fairer process of justice but even clemency with a Chief Minister’s support to boot. Contrast this with what happened to Muhammad Afzal Guru who, by Apex Court’s own order had a circumstantial link to the parliament attack. So he had to die to “satisfy the collective consciousness” of India. He was pulled out of the death row queue where he was at around number 30 and sent to gallows without his family getting a wind of it. He was told about the rejection of his mercy petition by the president only an hour before his death. And his mortal remains continue to be withheld from his family. 

And all the political class in the state has behaved as if they could do little about it. More so, the Chief Minister whose response has veered from publicly complaining about his advise against hanging being ignored by the centre to being kept in dark about the hanging itself. And ever since CM may have issued statements against the hanging, warned of a fallout in Kashmir and Afzal’s long term iconization for the new generation of Kashmiri youth, even seeking his mortal remains but there has never been an occasion when he has made us confident of his will or ability to do something about it. 

Unlike Tamil Nadu government, his government couldn’t get up the courage to pass the resolution on Afzal and nor does his government build a pressure or even make a case for the return of Afzal’s mortal remains. The truth is that behind the CM’s Afzal outrage – honestly felt or politically dictated – there has been a little veiled squeamishness about being too strongly identified with him. But no such defensiveness for Jayalalitha. Not also for Badal, who has BJP as an ally. Rajiv’s and Beant Singh’s killers respectively are not only an opportunity for political posturing and playing to their constituencies but also for some credible action which forces centre to rethink and revise its decision. 

The point here is not to fan an already deep sense of victimhood in Kashmir but to highlight a persisting democratic paradox in the state: the inability of the so called democratic representatives to adequately represent, respond or even play to the legitimate grievances and sentiments of their people. True, mainstream politics in the state cannot project the sentiment of Azadi but this was also never expected of them. Majority of the people who vote for them are conscious of this fact. But what they want from them is not only to deliver the good governance but also fight for their interests and rights and take an unambiguous stand when New Delhi seems to have discriminated against the state. 

And not only talk about it in no uncertain terms but be seen to act to undo it. But what we get is either apathy, a cryptic silence, may be sometimes a statement or two expressing an opinion or simply a show of silence. If anything, the case of Rajiv’s killers exposes the democracy in the state for what it is always suspected to be – a government by the people but obliged to if not representative of New Delhi. 

Source: http://www.greaterkashmir.com/news/2014/Feb/26/rajiv-s-killers-versus-afzal-guru-8.asp [accessed 24 April 2014]

Politics Stalks India's Death Row

FEB. 27, 2014 Contributing Op-Ed Writer By NILANJANA S. ROY NEW DELHI

Backlog is up there next to corruption in the pantheon of small deities who rule the lives of Indians. 

In 2012 there were, according to the National Crime Records Bureau, 414 convicts on death row in jails across the country. The wait for the noose can be very long, as legal appeals and petitions for clemency travel through the courts to the president and back. The wait can be so long, in fact, that on Feb. 18, the Supreme Court commuted to life terms the death sentences of three of the seven men convicted of assassinating Prime Minister Rajiv Gandhi in 1991. The petitions for clemency they sent to the president in 2000 had been lying in some bureaucrat’s desk drawer all this time. 

The judges ruled that the delay was unjustified and therefore cruel. The case might have remained a simple matter of law if the chief minister of Tamil Nadu, J. Jayalalithaa, hadn’t sensed a political opportunity in the midst of pre-election season. Ms. Jayalalithaa, who is of the A.I.A.D.M.K. party, promptly announced that her government interpreted the judgment to mean it could release all seven of the men convicted for the assassination, who are currently incarcerated in Tamil Nadu. Days after that, the Supreme Court issued a restraining order against the state government. Rahul Gandhi, Rajiv’s son and the vice president of the Indian National Congress party, said he was saddened that his father’s killers might be released. The party called the decision “irresponsible.” 

The convicts — who killed 14 people in addition to Rajiv that day — are widely assumed to be members of the Tamil Tigers, a rebel group that resents the role of India in Sri Lanka’s long civil war, and Ms. Jayalalithaa’s position has considerable support among the movement’s many supporters in her state. Even if the Law and Justice Ministry or the judiciary eventually overturns her government’s decision, she will already have scored with constituents. Once again, politics is overshadowing principles. The questions surrounding the fair treatment of Rajiv’s murderers was an opportunity for India to hold a comprehensive discussion on capital punishment. That debate has grown urgent since the resumption of executions in 2012 — there had been just two since 1995 — and rising calls for imposing the death penalty in cases of rape, murder or terrorism. 

Between 2001 and 2011, while death sentences were handed down to 1,455 people, the death sentences of 4,321 convicts were commuted to life terms, according to the Asian Center for Human Rights, citing official statistics. The courts displayed leniency for various reasons, including concern over inordinate procedural delays and new doubts about evidence because of shoddy forensics. Indian presidents have the power to grant clemency — and during the 1990s and 2000s exercised it not infrequently. Then suddenly the pattern broke and the rhythm of executions accelerated. In 2012, according to the National Crime Records Bureau, 97 prisoners were sentenced to death, whereas the capital sentences of only 61 inmates were commuted. 

In November 2012, Ajmal Kasab was hanged for participating in the Mumbai terror attacks of 2008. Last year, Afzal Guru was executed for being a conspirator in the 2001 attack on Parliament in New Delhi. Pranab Mukherjee, who has been president since mid-2012, has been disinclined to grant mercy. State officials and politicians are eager to appear responsive to threats of terrorism and crime. The media seem to promote quick fixes. It takes just one or two hangings for the public to start looking at the scaffold as a solution. Barely a month after Mr. Kasab’s execution, protesters went into the streets decrying the gang rape and subsequent death of Jyoti Singh Pandey, many carrying placards demanding the execution of her aggressors. 

One of those signs lodged in my memory: It was a hand-drawn sketch of men hanging from gallows by the neck, done in black and yellow markers by a child of nine and carried around by his mother. When most of the rapists were sentenced to death, crowds celebrated. Calls for sanctioning rapes, especially, with death sentences have since multiplied. This is troublesome. Putting aside the question of whether capital punishment is moral, this growing sentiment seems to suggest that rape is the worst crime women can suffer. Rarely are there calls for sentencing to death the perpetrators of witch burnings, dowry killings (murders of women whose families don’t offer enough money to their prospective spouses) or lethal acid attacks on women. A.P. Shah, a former chief justice of the Delhi High Court, has called for discussing whether capital punishment penalizes the poor, minorities or underprivileged castes, and whether in the absence of reliable forensic labs and trained experts, death sentences really are based on sound evidence. “Here one hardly finds a rich or affluent person going to the gallows,” Mr. Shah told Amnesty International last year. 

Every execution, every appeal for clemency, every commuted death sentence is an occasion to reopen the debate over capital punishment. But elections are approaching, and India will pass up its latest chance. This is not what our founders had intended. In 1949, the Constituent Assembly of the then-fledgling country first discussed whether to maintain the death penalty, which India had inherited from its British colonial overseers. Shibban Lal Saksena, a member of Parliament and a former political prisoner under the Raj, made a moving interjection drawing from his personal experience. Of being jailed alongside death row inmates, he said, “I had the misfortune during the 1942 movement to live in a condemned cell for about 26 months and about 37 men were hanged in my presence.” He made a case against capital punishment. 

The Constituent Assembly demurred, leaving it to future Parliaments to decide what to do. But no Parliament has tackled the death penalty with any rigor, leaving the practice in place while the justifications for it still go undiscussed. Whether it’s a chief minister who wants to release convicts whose views are popular with her constituents or a central government that wheels out the gallows to appease the public’s call for executing rapists and terrorists, the problem is the same: Political maneuvering is preventing India from holding a principled debate about when and how the state should kill its own people. 

Nilanjana S. Roy is an essayist and critic, and author of the novel “The Wildings.” 

Source: http://www.nytimes.com/2014/02/28/opinion/politics-stalks-indias-death-row.html?hpw&rref=opinion&_r=0 [accessed 24 April 2014]

Center Seeks Review of SC Ruling on Death Sentence

By Press Trust of India Mar 01, 2014 NEW DELHI, India

The center on Saturday moved the Supreme Court seeking review of its verdict holding that undue delay by the government in deciding mercy pleas can be grounds for commuting death sentences. The center submitted that the January 21 judgment, by which 15 condemned prisoners were granted life and paved the way for similar relief for Rajiv Gandhi killers, is “patently illegal, (and) suffers from errors apparent.”

 It said such an important issue should have been heard by a Constitution bench and the judgment passed by a three-judge bench was without “jurisdiction.” “It is respectfully submitted that the impugned judgment is patently illegal, suffers from errors apparent on the face of the record and flies in the face of well-established principles of law laid down by this court and contained in the Constitution and other statutes,” the review petition said. “It is submitted that in the present case, the issue raised was that of the commutation of the death sentence to life imprisonment on the ground of delay, which allegedly attracted Article 21 (right to life) in favor of the convicts.

 “Therefore, it involved a substantial issue of interpretation of the Constitution and ought to have been heard by a bench of five judges, as mandated under Article 145 of the Constitution,” it said.

Source: http://www.indiawest.com/news/17277-center-seeks-review-of-sc-ruling-on-death-sentence.html [accessed 24 April 2014]

Death row convicts’ rights must be respected

Updated Tuesday, March 4th 2014 at 23:57 GMT +3 By PRAVIN BOWRY 

Last week the Court of Appeal upheld the death sentence in a murder case appeal, as it has done time and again, knowing only too well that the sentence of death in reality will never be carried out. The rights of death row convicts has surfaced once again in a highly publicised case in India and which case is likely to have a great bearing to the Kenyan legal scenario. Three Indians were convicted for the murder of the late Prime Minister Rajiv Gandhi in 1991, 23 years ago. Three successive presidents refused, neglected or omitted to deal with the Pleas of Mercy made under the Presidential Prerogative of Mercy. 

In a landmark ruling the Supreme Court of India set aside the sentence of death and substituted it with life imprisonment and enunciated interesting legal dicta. The Supreme Court held, “In India even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.” 

It continued to say, “Certainly, a series of Constitutional Benches of this court have upheld the Constitutional validity of the death sentence in India over the span of decades but these judgments in no way take away the duty to follow the due procedure established by law in the execution of the sentence like death sentence passed lawfully, the execution of the sentence must also be in consonance with the constitutional mandate and not in violation of the constitutional principles.” And with that the Supreme Court commuted the death sentences of the convicts to life imprisonment. The decision also addressed a number of issues pertaining to the treatment of death row convicts. It made it obligatory that where the death sentence is enforced a post-mortem examination must be carried out and reports made available to the families of the deceased. 

The issue of the mental state of the convicts was also addressed. Regular mental health evaluations on all death row convicts and appropriate medical care to those in need should be given. Execution notice The court stated that the mental health of the convict must always be considered to determine whether they are in fit physical and mental condition to be executed. The convicts also have to be furnished with copies of their court papers and judgments since these documents are important in the preparation of the convicts’ appeals and mercy petitions. The court also pointed out that the convict must be notified in writing of rejection of a mercy petition; and that a copy of the rejection must be made available to the convict and a minimum 14 days execution notice be given to the convict and the family. 

Nearer home, the Ugandan case of Kigula and others v the Attorney General lifts the lid on the amount of human suffering that can be caused by delayed justice. In the Ugandan case, some 417 death row prisoners petitioned a Ugandan constitutional court for, among others, a declaration that inordinate delay in executing their death sentences violated their constitutional protection against cruel, inhuman or degrading treatment. One of the petitioners, Ben Ogwang, had been on death row for 20 years. In his uncontroverted evidence, he gave a grim picture of life on death row. He said that death row prisoners lived in cold and overcrowded cells. They urinated and defacated in open chamber pots in the cells in the presence of their colleagues. They also took their meals of poor quality, quantity and timing in these same cells. The prisoners, he further said, could not sleep because the lights in the cells were left on all nights. This left them in a permanent state of tiredness, which virtually reduced them to walking zombies. He said the prisoners were not informed of when an execution would take place. They kept guessing. Consequently, if a guard came and stopped outside a condemned prisoner’s door, the prisoner immediately felt his bowels open up and ended up soiling himself. When the prisoners got sick, he said, the hospital staff were reluctant to give them medical attention. They said since the prisoners were going to be hanged anyway, there was no need to waste scarce drugs on them.

As a result, he said, many prisoners died of diseases related to mental and physical anguish, physical hardship, poor feeding, depression and many other causes. The court found that the circumstances indeed amounted to cruel, inhuman and degrading treatment. The rights of death row or even life sentence convicts in Kenya will undoubtedly resurface in legal circles and Commonwealth jurisprudence is likely to have greater application. Matters of the death penalty, commuting the same and the Commissioner of Prisons failing to carry out the death sentence for over 25 years are matters which are likely to be argued soon in a constitutional court. It is a pity the Court of Appeal and indeed the Supreme Court have opted not to deal with the matters despite them being of great public interest. 

Source: http://www.standardmedia.co.ke/mobile/?articleID=2000106100&story_title=death-row-convicts-rights-must-be-respected&pageNo=2 [accessed 24 April 2014]

Derby cousin’s tears of joy as professor is off Death Row after 19 years

By Derby Telegraph | Posted: April 16, 2014

By Joey Severn

THE cousin of a man who has been on Death Row for more than 19 years has spoken of her delight that his sentence has been commuted. Kamalpreet Kaur, of Littleover, has not seen her cousin, Professor Devender Pal Singh Bhullar, since he was sentenced to death in India. The family, along with members of the Sikh community in Derby and across the world, joined together to lobby for his release. And that dream has taken a step closer to becoming a reality after he was finally released from Death Row. Mrs Kaur said: “I first received a call from India and later I spoke to his wife. “I was very happy when I heard. I was crying because it was so emotional. “We are hoping that he will be free soon and that we will be able to see him again. “I last saw him in 1991.

He has been imprisoned and later on Death Row for more than 19 and a half years; his mental and physical health has been seriously affected.” Mrs Kaur, who travelled from the Punjab to live in Derby in 2001, believes that her cousin has been wrongly imprisoned for a crime that he did not commit. Derby campaigner Bhajan Singh Dheansay said that Professor Bhullar’s father, uncle and best friend were murdered in 1991. He said: “Those people were murdered by the state in the Punjab because the professor was a lecturer and 42 of his students went on a demonstration and never came back. “The professor started asking questions about the system and, because of this, his father, brother and best friend were murdered.” Professor Bhullar was then accused of detonating a car bomb in Delhi in 1993 in an attack on a politician. The professor fled to Germany in an attempt to gain political asylum but was deported back to India.

At his trial he was found guilty and sentenced to death. He has spent more than 19 years not knowing if he would see the next day and, despite various appeals, his suffering has meant he was placed in a psychiatric ward for prisoners. But now Professor Bhullar’s sentence has been commuted to life, giving the family hope that he could be soon released. Mrs Kaur said: “It has been extremely hard for all the family, particularly for his wife and his mother. This is the first good news that we have had in all those long years. “I would like to thank every one who has helped over the years, especially the Sikh community in Derby and MPs, including Chris Williamson. “We dearly hope and pray for Professor Devinder-Pal Singh to be home again with his family.” Sikh community leader Jaz Rai said: “The love and support that we have seen from the Sikh community and the wider Derby community has been fantastic. “It is good news that he is now off Death Row. “The next step is to have him released but he has already been in prison for a life sentence.

“I would also like to thank the Derby Telegraph who have helped highlight the case of the sorts of injustices that are going on in what is supposed to be the biggest democracy in the world.” Labour Derby North MP Mr Williamson, who is the secretary of the cross-party group of MPs focused on the global abolition of the death penalty, backed the campaign. He said: “It is fantastic news but now the campaign to get him fully released begins. “I believe his conviction is unsafe and I will be continuing to support the campaign and the family to see him freed.”

Source: http://www.derbytelegraph.co.uk/Derby-cousin-8217-s-tears-joy-professor-Death-Row/story-20961394-detail/story.html [accessed 24 April 2014]

NO NOOSE IS GOOD NEWS

Wednesday , April 16 , 2014

In 13 months, the President has rejected 13 mercy petitions. The Supreme Court on the other hand has commuted the death sentences of 19 convicts this year. Should the court’s moves prompt the government to review the necessity of capital punishment, asks Smitha Verma Navneet Bhullar is a woman on a mission. For two decades, she has struggled to save the life of her convicted husband. Now Bhullar is on what could be the last leg of the campaign — his release from jail. Last month, the Supreme Court commuted Devinder Pal Singh Bhullar’s death sentence to life on grounds of delay in deciding his mercy plea and on the basis of his medical condition. Termed a terrorist with the Khalistan movement, he was convicted for bomb blasts that shook Delhi in 1993.

Subsequently sentenced to death, his mercy plea was rejected by the President in 2011. “Having spent 19 years and three months in jail, without any parole ever, he should now be released soon,” says Bhullar, 47, who spent only two months with her husband in their 22 years of marriage. These days, the Canada resident’s life revolves around her lawyer’s office and the hospital where her husband is being treated for depression. “The death sentence has become a political tool. And so have mercy pleas and remission,” she adds. The issue of death penalty is back in the news. After the December 2012 gang rape in Delhi, the law dealing with rape was revised. The amended Section 376E of the Indian Penal Code (IPC) provides for death in cases of repeat offenders.

Earlier this month, a sessions court in Mumbai sentenced three people to death for rape because they were repeat offenders. But the country has been witnessing conflicting views on execution. In 13 months, President Pranab Mukherjee has rejected 13 mercy petitions awarding the death penalty to 17 convicts — the highest for a President in the last 16 years. But the judiciary has seemingly taken a different turn. In a landmark judgment in January, the Supreme Court commuted the sentence of 15 condemned death row convicts to life. The decision was taken in view of the “inordinate delay” by the government in deciding on their mercy pleas. The court on similar grounds commuted the death sentence of Rajiv Gandhi’s killers to life in February.

This year, 19 death row convicts have been granted life by the Supreme Court. The President’s powers to grant pardon arise from Article 72 of the Constitution which empowers him to pardon, grant reprieve or suspend, remit and commute the sentence of a person convicted of any offence. The President is guided by the home minister in his decision. Among the first mercy petitions to be disposed of by Mukherjee included that of Mumbai 26/11 terrorist Ajmal Kasab. He was executed in November 2012 which was the first hanging after 2004. Four months later Afzal Guru was hanged for his involvement in the 2001 Parliament attack case. Of course, many believe that the death penalty is an essential part of justice. Execution, they argue, is a deterrent to crime. “In terms of punishment, humans fear death the most. It has both sociological and psychological impact,” says Supreme Court lawyer Pinky Anand. “It works as a punishment to criminals and as a deterrent to society.” Anand doesn’t agree with people who argue that the death penalty doesn’t bring down the crime rate. “There can never be any statistics to show how many people stopped committing a crime for fear of this punishment,” Anand adds.

Global human rights watchdog Amnesty International believes India is not giving a clear message on where it stands. “While the President has a record number of rejections of mercy petitions, the Supreme Court has shown the way for a progressive and humanitarian India where the degrading practice of executions has no place,” says Divya Iyer, senior researcher, Amnesty International India. According to Mumbai-based human rights activist and lawyer Yug Mohit Choudhry, the apex court’s position is not new. “In 1982, the Supreme Court in the case of Bachan Singh vs State of Punjab upheld the constitutionality of Section 302 of the IPC, which prescribes the death penalty as punishment for murder. And in so upholding its validity, the court prescribed that the death penalty be accorded only in the ‘rarest of rare cases’,” Choudhry explains. “While earlier, death was the norm and life term an exception, after the Bachan Singh case our courts turned this around.” Despite these moves, India was among the 39 countries in 2012 which voted against a UN General Assembly draft resolution calling for abolishing the death penalty. India had argued that each state had the sovereign right to determine its own legal system.

The apex court’s concern, on the other hand, is over not just the long wait that people on death row have to go through, but also over cases where death is not merited. Between 2000 and 2011, 130 death sentences were pronounced by the trial courts on an average every year. “But only three or four were upheld by the Supreme Court every year,” Choudhry says. Amnesty International’s latest report says that there are 435 convicts on death row with appeals at various stages — from high courts to clemency petitions awaiting the President’s nod. In the last 18 years, only three people have been executed, with the last two executions happening in the last two years.

But the December 16 incident has triggered a move towards an increase in death sentences. “Death sentences by trial courts since then are at their peak,” says Anup Sundernath, who heads the death penalty research project at the National Law University, Delhi. The project which will come up with its report later this year highlights the fact that sexual crimes are attracting death from the trial courts as a norm now. “The executive wants to show that we are tough on crime and by rejecting mercy petitions they think they can contain the current public outrage against lawlessness,” Choudhry says. Last year, 14 retired judges wrote to the President, pointing out that the Supreme Court had erroneously given death to 15 people from 1996. Two of them were hanged.

The judges called this “the gravest known miscarriage of justice” since Independence. “Yet in recent months, our government has shown an alarming tendency to implement the death penalty,” rues Saswati Debnath, a senior researcher with Human Rights Law Network, a Delhi-based non-government organisation. Many believe that the time has come for the government to reconsider its position. “The government should now build on these progressive judgments to review the legality and necessity of capital punishment, declare an immediate moratorium on executions, with a view to abolishing the death penalty,” Iyer says.

Source: http://www.telegraphindia.com:8080/1140416/jsp/opinion/story_18194968.jsp#.U1ic3vmSwrU [accessed 24 April 2014]

Honour killing: HC commutes to life death sentence of three

Press Trust of India | New Delhi April 17, 2014 Last Updated at 19:16 IST

The Delhi High Court today commuted to life term the death sentence awarded to three members of a family for the honour killing of a teen couple in 2010, saying there is a possibility of their reformation. A special bench of justices S Muralidhar and Mukta Gupta acquitted two others - the girl's mother and aunt - who also had been awarded capital punishment by the trial court, saying they were only "spectators" to the crime and did not share the common intention to murder the couple.

 "The court is of the opinion that ends of justice would be met if convicted appellants Om Prakash and Suraj are awarded the sentence of imprisonment for life which will not be less than 20 years actual. Since, appellant Sanjeev is a young man who was not married, the court considers it fit to sentence him to imprisonment of life subject to remissions.... "Appellants Maya (mother) and Khushboo (aunt) are acquitted of the offences with which they were charged," the bench said.

It said, "The two ladies could be at best be said to be spectators to what was being done by the three men in the house. "No doubt, as a mother and aunt there was an omission on their part to have not saved at least Asha, their daughter. However, the said omission does not qualify the test that they shared the common intention with the three men to commit the murder....," the high court said. Defence lawyer Sumeet Verma had argued that in the absence of an overt act being attributed to Khushboo and Maya, they cannot be convicted for offence of murder on the ground that they shared a common intention to commit the crime.

The court reduced to life term the death sentence awarded to the girl's father, uncle and cousin brother - Suraj, Om Prakash and Sanjeev respectively - saying there is no material placed on record by the State to show they cannot be reformed or are a menace to the society. "Although there are aggravating circumstances, there is no material placed on record by the State to show that the appellants Om Prakash, Suraj and Sanjeev are persons who cannot be reformed or are a menace to the society.... "Thus, this court is of the considered opinion that the penalty of death cannot be awarded to convicted appellants," the bench said.

Source: http://indianexpress.com/article/cities/delhi/hc-commutes-death-penalty-to-life-in-honour-killing-case/ [accessed 24 April 2014]

Don't Politicise Rajiv Murder Case Verdict: Convict's Mother

By PTI - CHENNAI Published: 20th April 2014 07:17 PM

Last Updated: 20th April 2014 07:17 PM

The mother of one of the seven life convicts in the Rajiv Gandhi assassination case, whose death sentence was commuted to life by the Supreme Court, today appealed to political parties and leaders not to politicise the issue relating to the verdict on their release. The comments of Arputhammal, mother of A G Perarivalan, come a day after DMK chief M Karunanidhi said that Chief Justice of India P Sathasivam's indication that verdict on a petition to release of all seven lifers would be given in a week has led to fears of a "political fallout" in Tamil Nadu ahead of April 24 Lok Sabha polls.

"With polling scheduled on April 24, Justice Sathasivam saying that an important verdict will be pronounced before his retirement date of April 25 has led to fears among many if it will lead to a political fallout and created a big debate among advocates," Karunanidhi had said. Talking to reporters here, Arputhammal said, "All I request is not to politicise the issue. We are hoping for a good verdict from Supreme Court later this week. What we fear is that due to such comments, it may get delayed." She has written a letter to Karunanidhi requesting him to refrain from making any comments on the case as the verdict was expected to come later this week.

"As we are expecting the release of my son who is serving jail term for 23 years, we fear due to your comments, it may get delayed further. I humbly request you not to make such political statements," she said in the letter. On February 20, the apex court stayed the state government's order on the release of the convicts, saying there have been procedural lapses on the part of the state. Besides Perarivalan, Santhan and Murugan, the husband of Nalini, earned a major reprieve from Supreme Court which spared them from the gallows. The Tamil Nadu government subsequently decided to set free all the seven convicts in the case. 

Source: http://www.newindianexpress.com/elections/news/Dont-Politicise-Rajiv-Murder-Case-Verdict-Convicts-Mother/2014/04/20/article2179574.ece [accessed on 24 April 2014]

Three sentenced to death for gang rapes in Mumbai

BY NIVEDITA BHATTACHARJEE AND SHYAMANTHA ASOKAN MUMBAI/NEW DELHI

Fri Apr 4, 2014 5:50pm IST Reuters

Three men were sentenced to death on Friday for two gang rapes last year in Mumbai, including an attack on a photojournalist that sparked protests in the city and raised fresh questions about attitudes to women in the world's largest democracy. A Mumbai court on Friday sentenced Vijay Jadhav, Kasim Bengali and Mohammed Salim Ansari to death, the first time capital punishment has been given for rape not involving the death of the victim.

"There was no chance of reformation in these men and this sends a strong signal to society," special prosecutor Ujjwal Nikam told reporters outside the court. Women's safety in India has been under the spotlight since the gang rape and murder of a student on a bus in Delhi in 2012, which provoked nationwide protests and the introduction of tougher sexual assault laws. But a stream of high-profile attacks has raised concerns that little has changed.

In the Mumbai case, four men were convicted last week of gang-raping the photojournalist, who was attacked in the early evening of August 22 while on an assignment with a male colleague at an abandoned textile mill. Three of them were given the death penalty because they had also been found guilty of raping another woman at the same location in July. The fourth man received a life sentence and a juvenile charged for his involvement in the case is being tried separately.

 "I think the court has given a distinct, definite and welcome verdict," said Himanshu Roy, joint commissioner of police in Mumbai. The attack on the photojournalist provoked a public outcry partly because Mumbai, India's financial capital and the home of Bollywood, is considered one of the country's safest cities for women. Mahalaxmi, the neighbourhood where the two rapes took place, is a central district close to many new offices and bars.

(Additional reporting by Aradhana Aravindan in Mumbai; Editing by Tony Munroe, Sanjeev Miglani and Ron Popeski) 

Source: http://in.reuters.com/article/2014/04/04/mumbai-gangrape-photojournalist-verdict-idINDEEA3308W20140404 [accessed on 24th April 2014]