Abolish Death Penalty India: Nitish Katara murder: SC rejects plea for death sentence to three

Wednesday, December 19, 2018

Nitish Katara murder: SC rejects plea for death sentence to three

Written by Utkarsh Anand |New Delhi |Updated: October 3, 2016 2:57:13 pm

"If it is not planned, strictly speaking it will not be murder. If it is in heat of the moment, it will come under exception clause of Section 300 (murder),” observed the court.

“It is a murder and just that… like most murders happen to be,” observed the Supreme Court as it refused to hand out the death sentence to the three convicts in the Nitish Katara murder case. Rejecting a plea by Katara’s mother, Neelam, the top court said convicts Vikas and Vishal Yadav — who are cousins — and Sukhdev Pehelwan cannot be given the death sentence nor can they be incarcerated for life since the offence was not a matter of honour killing or committed in a heinous manner. “Nobody can relieve the pain of a mother when a child is lost. It is too big a pain to be relieved by anything or any order. But you will have to show to us how this is heinous? How can this be brought under the rarest of rare category?” said a bench of Justice J S Khehar and Justice R Banumati.

Nitish Katara’s mother Neelam at the Delhi High Court. (Source: Express photo by Anil Sharma)

“It (murder) may be planned but it certainly is not heinous. And every murder is planned. Tell us which murder is not planned? If it is not planned, strictly speaking it will not be murder. If it is in heat of the moment, it will come under exception clause of Section 300 (murder),” observed the court. It added, “What has happened is not condonable but they don’t deserve death for this… not even full life.” The cousins have been sentenced to 30 years in jail by the Delhi High Court for the executive’s murder. After the court order, Neelam told The Indian Express, “I respect the court’s decision. Perhaps we failed in putting across our points clearly. We will come prepared with more facts next time but this fight shall continue. Today’s order has given me more strength to fight.”

During the hearing, the bench had asked senior advocate Harish Salve, who appeared for Neelam, to demonstrate as to why the punishment of death was the only fitting sentence. Salve sought to convince the bench that Nitish – who was 25 years when the incident happened – was taken away from a wedding party in Ghaziabad by Vikas and Vishal and brutally done to death in cold blood. Nitish was reportedly in a relationship with Bharti Yadav, daughter of UP politician D P Yadav and Vikas’s sister. “If this is not rarest of rare then what else could be? The victim was picked up from a party where he was seen with the girl and was killed… It is an honour killing since the family did not want the boy to be in a relationship with this girl,” argued Salve. The bench, however, shot down the honour killing argument. It noted the records of the case which showed that both families appeared to know about their relationship and there was no plausible reason why the girl’s family could have objections when Nitish was also from a good family.

It observed that Bharti had invited Nitish for her sister’s wedding in the knowledge of her family and the cousins got enraged after seeing them together on the dance floor. When Salve pointed out that Nitish’s body was burnt after killing him, the bench said, “It was a corpse that was burnt. Show us if the victim was killed in a heinous manner such as his body was cut into pieces when he was alive. something abhorrent. Here he was killed in one blow (of a hammer). The body charred was corpse. This will eventually be under Section 201 (destruction of evidence).” Salve then asked the court to underscore that a youngster was killed. The bench replied, “Yes. A youngster was killed by youngsters. They (cousins) were also really young when they did it. It is all emotional. They saw them dancing together, kept a grudge in their heart and took the boy away and killed him.”

Source: https://indianexpress.com/article/india/india-news-india/nitish-katara-killing-supreme-court-declines-death-sentence-plea/ (Accessed on 19 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

Wednesday, December 19, 2018

Nitish Katara murder: SC rejects plea for death sentence to three

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