Abolish Death Penalty India: Article 72

Showing posts with label Article 72. Show all posts

Monday, December 24, 2018

Mercy plea rejected by President, what next for death-row convict?

Written by Ananthakrishnan G |New Delhi |Published: May 31, 2018 12:41:40 am

President Ram Nath Kovind has rejected the mercy plea of Jagat Rai who, along with accomplices, was convicted of killing a woman and five children by setting their house on fire while they were asleep in 2006, at Rampur Shyamchand village in Bihar. His death sentence was upheld by the Supreme Court in 2013. There have been precedents that show judicial options remain for a death-row convict even after rejection by the President.

When it reaches President

The sentence of death passed by a trial court has to be confirmed by a High Court. The convict can then move the Supreme Court. In September 2014, a Constitution Bench of the SC held that appeals against HC rulings confirming the death sentence will be heard by a Bench of three judges. Once the SC dismisses such an appeal, the convict can seek a review (to be heard in open court) and subsequently, file a curative petition. If all these are dismissed, the convict has the option of a mercy petition. There is no time limit within which the mercy petition has to be decided.

Power of pardon

Under Article 72 of the Constitution, “the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death”. Under Article 161, the Governor too has pardoning powers but these do not extend to death sentences. The President cannot exercise his power of pardon independent of the government. Rashtrapati Bhawan forwards the mercy plea to the Ministry of Home Affairs, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.

In several cases, the SC has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994. Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

After President decides

In October 2006, in Epuru Sudhakar & Another vs Andhra Pradesh and Others, the SC held that the powers of the President or Governor under Articles 72 and 161 are subject to judicial review. Their decision can be challenged on the ground that (a) it was passed without application of mind; (b) it is mala fide; (c) it was passed on extraneous or wholly irrelevant considerations; (d) relevant materials were kept out of consideration; (e) it suffers from arbitrariness. Can a High Court review the President’s rejection of a mercy petition? The question is pending before the SC. Sonu Sardar, a murder convict from Chhattisgarh, was sentenced to death in 2008 for killing five members of a scrap dealer’s family, including two minors, in 2004. After his mercy pleas to the Governor and the President were rejected, Sardar moved the Delhi HC in 2015 challenging the rejection citing “delay, improper exercise of power and illegal solitary confinement”.

On June 28, 2017, the High Court commuted the sentence to life imprisonment. The Centre challenged this, and the Supreme Court issued a notice in November 2017. The government contended that only the Supreme Court should entertain petitions against the President’s decision to reject a mercy petition.

Source: https://indianexpress.com/article/explained/ram-nath-kovind-what-is-mercy-petition-death-sentence-supreme-court-5197771/ (Accessed 24 December 2018)

Sunday, December 23, 2018

Gopalkrishna Gandhi’s New Book Assails President Mukherjee’s `Robotic’ Use Of His Powers To Reject Mercy Petitions

BY: LIVE LAW RESEARCH TEAM

DECEMBER 26, 2016

10:43 AM

The President, Pranab Mukherjee, has so far, under Article 72 of the Constitution, rejected mercy petitions from 36 death row convicts, commuted the death sentences of three of the 36 convicts whose mercy petitions were rejected by him, three have been hanged, 17 have been successful in getting the Supreme Court or the high court commute their death sentences by setting aside the rejection of the mercy petitions, while the remaining 16 are oscillating between life and death, as they have not exhausted the legal remedies available to them. As he completes his term as the President in July next year, he may like to reflect on the legacy which he leaves for his successors. There is no doubt that the President, under the Constitution, is bound by the ministerial advice tendered to him, on whether to accept or reject a mercy petition from a death row convict. Does this make the president a mere rubber stamp?, asks Gopalkrishna Gandhi, author of the recent book, Abolishing the Death Penalty: Why India Should Say No To Capital Punishment (Aleph, 2016), and answers thus: “Rubber stamps do not necessarily come with rubber handholds. They can be made of firm wood and, sometimes, even steel. And they can choose to use their own, not the ‘state issued’, inking pad of unvarying magenta.”

Book: Abolishing the Death Penalty by Gopalkrishna Gandhi

The author adds that a president can accept without demur the government’s advice on whether a mercy petition of a death row convict should be rejected. Or, the president can if he so wishes to, ask questions, make comments, and seek clarifications before he confirms advice, it is perfectly possible that he can occasion some rethinking in the government and actually change the course of the case.” Some presidents, Gopalkrishna Gandhi says, have not troubled the government with second thoughts, others have; To give evaluations and revaluations a chance to excavate the ingredients of a death penalty case is not an act of procrastination but of responsibility. It is both wise and humble. To not do so is unwise and arrogant. It is also callous, he suggests. Gopalkrishna Gandhi considers Mukherjee as a retentionist, while categorising former presidents, K.R.Narayanan, A.P.J.Abdul Kalam and Pratibha Patil, as abolitionists. He observes, “Presidential inclinations cannot form the final gradient to the gallows. A mercy petition cannot be at the mercy of one man’s temperament, albeit filtered by governmental advice. That is valuationally abhorrent in a democratic republic governed by the rule of law.”

In the provisions of Article 72, the author says, lie a philosophy inadequately explained, that requires the executive study of a mercy petition to be trans-judicial but not un-judicious, to be a large canvas but not a tabula rasa for presidential expressionism. No man’s life can be left to the mercy of another man’s discretion, he is categorical. “Raisina Hill is not the Purana Qila, nor Rashtrapati Bhavan the Red Fort”, he says succinctly. The book is a lucid analysis of the arguments for and against death penalty, and is likely to convert a retentionist into an abolitionist. Is the abolition of death penalty possible in India? More often, leaders and institutions move along the grain of prevailing public opinion. Those in India are no different from this global phenomenon. But is it a sign of being democratic? To Gopalkrishna Gandhi, it is a sign of moral unventuresomeness and intellectual feebleness. Francois Mitterrand of France and Nelson Mandela of South Africa, greatly assisted by two non-political judicial intellects, Robert Badinter and Justice Arthur Badinter was a French criminal lawyer, university professor, politician and activist against death penalty, whose abolition he successfully sponsored in Parliament in 1981. Mitterrand chose him as his Minister of Justice, after coming to power. Arthur Chaskalson was President of the Constitutional Court of South Africa from 1994 to 2001, and Chief Justice of South Africa from 2001 to 2005. The court’s first major decision under his leadership, was the abolition of the death penalty on June 6, 1995.

To abolish death penalty, India has to wait for its Badinter and Chaskalson moments. Those advocating abolition of death penalty are invariably asked the question about the victims, and their families, and their cry for justice, which is answered in the form of death sentence for the killers. The book’s response to this is that death penalty deprives the convict, the experience of the consequences of his crime, which is the objective of any punishment. By snatching the life of the convict at one go, the state may achieve closure to the case, but the objectives of the punishment are not fulfilled, and justice remains incomplete. The author also seeks answers to the difficult question of whether life sentence without remission can be a substitute to death sentence, as the Supreme Court has held in several recent cases. He merely observes that the right to life is about more than freedom from the noose. It is, he says, about the right conditions for prisoners’ officially incapacitated livingconditions that are compatible with human dignity. Left to himself, would a prisoner prefer death sentence, or life imprisonment without remission? Poor and inhuman conditions prevailing in India’s prisons would suggest that a prisoner may prefer death to life imprisonment without remission. But the answer is not as simple as that. open, rather than pre-determined by the Court, which has no idea of the prisoner’s capacity for reform, at the time of sentencing. Therefore, the current phase of life imprisonment without remission cannot be considered a victory for the abolition movement. A murder, committed on impulse, without premeditation, as we all know, does not merit a death sentence.

Death penalty, insofar as it is imposed after premeditation by the State on a convict, therefore, is nothing but a State-sponsored murder, which ought not to remain in the statute books. The author, a well-known diplomat and author, is currently a Distinguished Professor at Ashoka University. According to Roger Hood, Professor Emeritus of Criminology, University of Oxford, co-author of The Death Penalty: A Worldwide Perspective, the book makes a convincing case for complete abolition of the death penalty in India. Fali S. Nariman, senior advocate, observes that punishment with death is not at all necessary to convince people that killing people is a crime! This is the message eloquently conveyed in this unputdownable book, he adds. The book’s cover has a persuasive question posed at the centre of the noose: Is taking another life a just punishment or an act as inhuman as the crime that triggered it? Any reader who reads this book is likely to say no to the first question, and yes to the second.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.

Source: https://www.livelaw.in/gopalkrishna-gandhis-new-book-assails-president-mukherjees-robotic-use-powers-reject-mercy-petitions/ (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