Abolish Death Penalty India: Mirwaiz Umar Farooq slams death sentence to Kashmiri youth (Kashmir)

Sunday, December 23, 2018

Mirwaiz Umar Farooq slams death sentence to Kashmiri youth (Kashmir)

By PTI |Srinagar |Updated: January 23, 2017 8:03:35 pm

"The verdict of a trial court of West Bengal, awarding death sentence to Muzaffar Ahmad Rather of Jogipora, Kulgam (in south Kashmir) after being in jail for 14 continuous years is against the internationally accepted norms of justice and fair play," he said in a statement at Srinagar.

The West Bengal court’s verdict awarding death sentence to a Kashmiri youth after being in jail for 14 years is “against the internationally accepted norms of justice”, Moderate Hurriyat Conference chief Mirwaiz Umar Farooq said on Monday. “The verdict of a trial court of West Bengal, awarding death sentence to Muzaffar Ahmad Rather of Jogipora, Kulgam (in south Kashmir) after being in jail for 14 continuous years is against the internationally accepted norms of justice and fair play,” he said in a statement at Srinagar. His reaction came after three Lashkar-e-Taiba militants, including two Pakistani nationals arrested by BSF in 2007 from the Indo-Bangladesh border at Petrapole, were on January 21 sentenced to death by the court in Bongaon in West Bengal’s North 24-Parganas district in a case of waging war against the government. They were arrested by BSF while trying to enter India through its international border with Bangladesh at Petrapole on April 4, 2007.

The separatist leader claimed that Rather had been “targeted for being a Kashmiri”. “Indian judiciary had displayed miscarriage of justice in cases of Kashmiris earlier and this was yet another addition to this long list,” Mirwaiz said. He also called Rather’s parents over phone and expressed solidarity with them, asking them not to feel alone in this hour of difficulty, the statement said. In a separate statement, hardline Hurriyat Conference chairman Syed Ali Shah Geelani expressed “deep concern” over the pronouncement of death sentence to Rather.

Muzaffar Ahmad Rather of Jogipora, Kulgam (in south Kashmir) awarded death sentence in West Bengal

“Judiciary was thought the last resort for justice but instead they are acting as a tool for injustice. Indian judiciary has never delivered justice when it comes to people of the state (Jammu and Kashmir) and their decisions and rulings are always influenced by biased approach and politics,” he alleged. Geelani said the death sentence was “mockery of justice” and people of Jammu and Kashmir never “reposed faith in Indian judiciary” as they have witnessed how “these institutions were influenced in (Parliament attack convict) Afzal Guru’s case. Guru, a resident of Sopore township of north Kashmir, was hanged in Delhi’s Tihar jail on February 9, 2013.

Afzal Guru, a Kashmiri executed on 9 February 2013 at Delhi Tihar Central Prison

Geelani alleged that Kashmiri youth, arrested outside the state, were convicted and implicated on fake allegations and “even legal consultation or assistance is not provided and hence the verdicts declared by court are full of flaws.”

Source: https://indianexpress.com/article/india/mirwaiz-umar-farooq-slams-death-sentence-to-kashmiri-youth-4488173/ (Accessed 23 December 2018)

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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

Sunday, December 23, 2018

Mirwaiz Umar Farooq slams death sentence to Kashmiri youth (Kashmir)

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