Abolish Death Penalty India: No review of Soumya sentence: Supreme Court (Kerala)

Thursday, December 20, 2018

No review of Soumya sentence: Supreme Court (Kerala)

Dhananjay Mahapatra

TNN | Nov 12, 2016, 07.17 AM IST

NEW DELHI: The outcry over awarding life sentence to Soumya case convict Govindachamy and attempts by the Kerala government, Soumya's mother and ex-judge Markandey Katju+ to get the sentence enhanced to death penalty failed to convince the Supreme Court to review its September 15 decision. Govindachamy allegedly pushed Soumya off a moving train after sexually assaulting her. But the SC had taken note of oral testimony of witnesses who said that she had jumped off the train to escape the rapist. It had acquitted Govindachamy of murder charge while convicting him of rape and sentenced him to life imprisonment. The 23-year-old Soumya had boarded the Ernakulam-Shoranur passenger train on February 1, 2011, around 5.30pm at Ernakulam Town railway station to go to her home in Shoranur for her betrothal ceremony.

Govindachamy

Taking suo motu notice of Justice Katju's blog criticising the judgment and the judges who delivered it for not taking note of evidence and letting Govindachamy off leniently with life sentence, the SC had on October 17 requested the ex-judge to assist the court while hearing the review petitions filed by Kerala government and Soumya's mother. Justice Katju stressed that the SC should have assumed, in the absence of concrete proof about Govindachamy pushing Soumya out of the train, that the convict was responsible for the tragedy . "The accused sexually assaulted the girl and banged her head repeatedly, causing serious injuries to the head and brain. In that condition, even if she jumped out of a moving train, the act of the deceased should be taken as a consequence of the threat posed by the accused. So he should face death penalty for murder," Justice Katju said.

Soumya

The bench of Justices Ranjan Gogoi, P C Pant and U U Lalit repeatedly asked him how a court of law could assume a story on behalf of the prosecution by creating evidence which was non-existent. "We cannot think on our own and conjure up a story which is not even stated in the case diary by the prosecution," said Justice Lalit. Justice Katju asked, "Does it mean you will swallow whatever is told to you? The bench erred gravely in not discarding that part of the evidence. Judges of the Supreme Court err. I have erred gravely.But I always made an attempt to correct it. You should also correct your judgment." When the court asked him to prove his point in reference to provisions of Indian Evidence Act, Justice Katju snapped, "Let us show some common sense. Even if Soumya jumped out and died of the injuries, it is common sense that she was attempting to escape the threat posed by Govindachamy . This case must be decided on the basis of common sense." The bench did not agree and dismissed the three review petitions.

Source: https://timesofindia.indiatimes.com/No-review-of-Soumya-sentence-Supreme-Court/articleshow/55381494.cms (Accessed 20 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

Thursday, December 20, 2018

No review of Soumya sentence: Supreme Court (Kerala)

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