Solitary Confinement Of Death Convict Prior To Rejection Of Mercy Petition Palpably Illegal: SC

BY: ASHOK KINI2 May 2019 8:41 AM 

"On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction." 

The Supreme Court has observed that solitary confinement of a person sentenced to death prior to the rejection of mercy petition is palpably illegal. The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer upheld the Punjab and Haryana High Court judgment that had commuted death sentence awarded to a murder accused whose mercy petition was rejected by the President of India in 2013.

The Death sentence awarded to Dharam Pal, in a murder case, was affirmed by the Supreme Court in the year 1999. His petition seeking pardon, filed in 1999, was rejected by the President in the year 2013. The Punjab and Haryana High Court allowed his writ petition and commuted the death sentence to life imprisonment in light of the change in circumstances- his acquittal in the rape case, which was an important deciding factor by this Court in negating his appeal and delay in deciding his mercy petition by the President, among other ground.

Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer 

Convict cannot be said to be "under sentence of death" till the mercy petition is rejected.

In this proceeding, the centre admitted that Dharam Pal remained in solitary confinement for a period of 18 years, and has undergone imprisonment for a total period of more than 25 years till date. Referring to Sunil Batra judgment, the bench observed that even if the Sessions Court has sentenced the convict to death, subject to the confirmation of the High Court, or even if the appeal is filed before the High Court and the Supreme Court against the imposition of death punishment and the same is pending, the convict cannot be said to be "under sentence of death" till the mercy petition filed before the Governor or the President is rejected. 

In this regard, the bench observed: 

"Throughout the period of deciding his mercy petition by the President, he was kept in solitary confinement in various jails. Solitary confinement prior to the disposal of the mercy petition is per se illegal and amounts to separate and additional punishment not authorized by law… …. Thus, solitary confinement prior to the rejection of mercy petition, which has taken place in spite of various decisions of this Court to the contrary, is unfortunate and palpably illegal. In the present case, the Respondent underwent such a long period of solitary confinement that too, prior to his mercy petition being rejected, thereby making it a formidable case for commuting his death sentence into life imprisonment, as rightly held by the High Court" 

Prolonged Delay In Execution Of Death Sentence Violates Fundamental Right

The court also upheld the High Court observation that the prolonged delay in execution of a sentence of death has a dehumanizing effect and this has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution. 

All Relevant Materials Should Be Placed Before President While He Considers Mercy Petition

The bench further observed that the fact that he was subsequently acquitted in the rape case (SC while confirming his death sentence had taken note of the conviction by Trial Court) has great bearing on the quantum on sentence that ought to be awarded to him and the same should have been brought to the notice of the President while deciding his mercy petition.

On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction. When the matter is placed before the President, it is incumbent on the part of the concerned authority to place all the materials such as judgments of the courts, as well as any other relevant material connected with the conviction. 

The bench, taking into account all circumstances, finally directed his release after the completion of 35 years of actual imprisonment including the period already undergone by him.

Source: https://www.livelaw.in/top-stories/solitary-confinement-prior-to-rejection-mercy-petition-illegal--144707 (accessed on 30 May 2019)

Death sentence to man for killing minor girl (Uttar Pradesh)

Published: February 10, 2017 5:14 PM IST

Mathura: A man has been awarded death sentence by a court here for killing his friend’s daughter as she resisted rape attempt.

“Additional District Judge Vivekanand Sharan Tripathi, in his verdict pronounced yesterday, also imposed a fine of Rs 15,000 on Shyamjeet,” Assistant District Government Counsel (ADGC), Ravinder Kumar Singh, said. “Shyamjeet, a resident of Sarai Salwan village, killed the six-year-old daughter of his friend Nemi Chand when she resisted his rape attempt on August 25 last year,” he said.

Source: https://www.india.com/news/agencies/death-sentence-to-man-for-killing-minor-girl-1828321/  (Accessed 23 December 2018)

SC heard seven death penalty appeals in 2016, confirmed none

Written by Utkarsh Anand |New Delhi |

Published: March 1, 2017 2:22:55 am 

In three cases, accused were acquitted; 397 on death row

INDICATING application of stringent tests before sending convicts to the gallows, the Supreme Court did not confirm the death penalty in any of the seven cases of criminal appeals that it decided in 2016. A year before, in 2015, the apex court had confirmed eight out of nine death penalty cases, including that of 1993 Mumbai serial bomb blasts convict Yakub Memon. According to a report compiled by the Centre on the Death Penalty, National Law University Delhi, not only did the court keep off awarding death penalty, it acquitted the accused in three out of the seven cases. While 71 cases of death sentences were pending in the apex court at the end of 2016, a total of 397 prisoners were on death row with their appeals pending either in high courts or in the Supreme Court as on December 31, 2016.

The Supreme Court of India. Photo: Ramesh Pathania/Mint

Uttar Pradesh topped the list of states with the highest number of death row prisoners at 70. It was followed by Maharashtra with 47, West Bengal 39 and Madhya Pradesh with 37. The report, made public on Tuesday, stated that 11 death row prisoners could not be classified state-wise since they were convicted under Central laws, such as the Arms Act. Only one person was sentenced to death in a rape and murder case by the SC in 2016 when it confirmed the extreme punishment at the stage of review, stated the report.

In 2016, trial courts across the country handed down the death sentence to 136 people, high courts confirmed punishment only in 15 cases in toto while the Supreme Court upheld none. Trial courts in 2015 had sentenced 70 convicts to death. More than 60 per cent of the cases in which courts awarded the death sentence were murder cases while 15 per cent were cases of murder and sexual assaults. President Pranab Mukherjee also took a call on seven mercy petitions moved by death row convicts in 2016 under Article 72 of the Constitution.

He rejected the mercy petitions of six prisoners, and commuted the death sentence of one convict. In the order of commutation, the President stated that the convict would spend the rest of his life in prison. Previous reports by the law university had said at least 62 per cent of death row inmates were first-time offenders; around 60 per cent had not completed secondary education; and nearly 75 per cent belong to economically weaker sections.

Source: https://indianexpress.com/article/india/supreme-court-heard-seven-death-penalty-appeals-in-2016-confirmed-none-4548782/ (Accessed 23 December 2018)

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]

Are we carving out separate jurisdiction for death row prisoners, SC asks

Dhananjay Mahapatra, TNN Aug 9, 2013, 02.56AM IST

NEW DELHI: In a midnight order, the Supreme Court stopped Jabalpur jail authorities hours before they were to take Maganlal to the gallows on Thursday to execute the capital punishment given to him for hacking to death his five daughters, the eldest of whom was just six years, in Madhya Pradesh's Sehore district.

NGO 'People's Union for Democratic Rights' through senior advocate Colin Gonsalves swung into action late on Wednesday evening after the TOI website reported Maganlal's imminent execution in Jabalpur central jail and moved Chief Justice of India P Sathasivam, who held court at his residence close to midnight and ordered the authorities to put the scheduled execution on hold till Thursday.
On Thursday, sitting with Justice Ranjana Desai, Justice Sathasivam extended the stay on Maganlal's execution till further orders after Gonsalves doubted whether authorities had intimated the convict's family about the President's July 22 decision to reject his mercy plea.

Though the apex court has always acted in favour of right to life, a recent spate of petitions filed at the eleventh hour seeking stay of execution after rejection of mercy petitions by the President forced the bench of Justices Sathasivam and Desai to wonder aloud, "Are we creating a separate post-mercy rejection jurisdiction?"

There was a reason for the CJI to express his nuanced thoughts, because death warrants are issued against a condemned prisoner only after he goes through all tiers of judicial remedy - appeal in the high court, then in Supreme Court and following it up with review and curative petitions - to challenge the death sentence imposed on him by the trial court which awards capital sentence after finding the heinous crime fitting into the SC-devised 'rarest of rare' category.

In a similar late evening sitting on April 6 at the residence of Justice Sathasivam, he along with Justice MY Eqbal had stayed the execution of eight persons whose mercy pleas had been rejected. There too, PUDR was the public interest petitioner for the death row prisoners.

During the April 6 hearing, the bench of Justices Sathasivam and Eqbal had said it was entertaining the petition to ascertain whether proper communication had been sent to the relatives of these condemned prisoners whose mercy pleas had been rejected.

"It should not happen as it happened in the Jammu and Kashmir case (Afzal Guru's hanging). The intimation of the execution reached the relatives of the person (Afzal) after his hanging. That is bad. The relatives lost an opportunity to meet the condemned prisoner for one last time before his execution," the bench had said.

Gonsalves picked up the thread from the April 6 hearing and on Thursday argued before the bench of Justices Sathasivam and Desai that "no communication appears to have been sent to the family of Maganlal after the rejection of his mercy plea". The court allowed PUDR's lawyers - Rishabha Sancheti, Yug Mohit Chaudhry and Puja Sharma - to meet the family of the condemned prisoner and ascertain facts.

A trial court had on February 3, 2011, found Maganlal guilty of beheading his daughters Jamuna (1), Phool Kanwar (2), Aarti (4), Savita (5) and Leela (6) with an axe following a dispute over property with his two wives on June 11, 2010. The high court upheld the trial court decision seven months later and the Supreme Court dismissed his appeal on January 9 last year. 

Source: http://articles.timesofindia.indiatimes.com/2013-08-09/india/41236594_1_mercy-petitions-mercy-plea-execution [accessed 12th August 2013]

Assemblies cannot seek clemency for death-row convicts: Achary

The former Secretary-General of the Lok Sabha, P.D.T. Achary, has warned that the recent resolution passed by the Tamil Nadu Legislative Assembly seeking the President to commute the death sentence of three of Rajiv Gandhi's killers and a similar attempt made by the Jammu and Kashmir Assembly in favour of Parliament attack case convict Afzal Guru might result in “unintended consequences.”

Mr. Achary told The Hindu on Thursday that neither the State government has constitutionally-sanctioned powers in this regard nor can the Assembly perform that role.

“In other words, the Legislative Assembly of a State has no power to request the President to consider a mercy petition in a particular way,” he pointed out.

Commenting on the powers of the State legislatures to pass such resolutions seeking mercy for the convicts even after the President has rejected them, Mr. Achary said: “Passing a resolution by an Assembly seeking Presidential pardon for someone who did an act of terrorism is tantamount to saying ‘He is our terrorist, therefore, please spare him.' This message goes across the world.”

The steps taken by the two Assemblies had caused considerable consternation in the Parliamentary and political circles and raised serious constitutional and political questions.

Under the Constitutional scheme, State Legislatures had been given exclusive legislative powers in respect of items in the State List. They could also legislate on matters in the Concurrent List, except in a case of repugnancy where the law made by Parliament on that subject would prevail.

Jurisdiction

As per rules, a State Legislature could consider a matter through a resolution only if it was within the State's jurisdiction.

Through a resolution a Legislative House calls the attention of the State government to a matter or situation for consideration by that government. Constitutionally speaking, the government could consider the same only if the matter concerns it.

“It seems that there is a certain amount of confusion in the minds of the Assembly Speakers on the competence of State Legislatures to consider such resolutions. Unlike in the U.S., where the residuary powers vest in the States, in India the Constitution vests the residuary powers in Parliament only. So the State Legislature cannot deal with a matter which is outside the area assigned to it by the Constitution.”

“But by no stretch of imagination can we think that the State governments have the jurisdiction to consider the resolutions brought before these two Assemblies seeking Presidential clemency for the convicts and can act on them. In respect of mercy petitions, the President acts on the advice of his or her Council of Ministers. So, what is the role of a State government in this matter? Nothing,” Mr. Achary asserted.

Whatever be the political compulsions, a legislative body is required to function within the framework of constitutional rules and passing a resolution by an Assembly seeking Presidential clemency for a convict is an unprecedented act.

Pointing out that there was an irresistible temptation among the Indian political class to succumb to such pressures, he observed: “Rule of law is what steers the ship of democratic institutions out of the turgid waters of sectarian pressures.”

A precedent, once set, was followed by others in future. Generally, the presiding officers of the legislatures took great amount of care while dealing with issues of constitutional significance, Mr. Achary added.

Source: The Hindu
NEW DELHI, October 27, 2011
http://www.thehindu.com/news/national/article2574161.ece accessed on 8th November 2011

Kashmiri on Death Row Galvanises Opposition to Death Penalty

By Sana Altaf

SRINAGAR, India, Oct 10, 2011 (IPS) - "Is Afzal Guru really the person that so many Indians supposedly want dead? Or are they taking out their frustrations on an easy target?" asked Human Rights Watch, referring to the death sentence handed down to the Kashmiri man who was convicted of conspiracy in the 2001 suicide attack on the Indian Parliament.

"For many, Afzal bears the burden of representing all those who dare to oppose Indian rule in restive parts of the country, because the attack on Parliament was an attack on India," said the statement by Meenakshi Ganguly, South Asia researcher for global rights watchdog HRW.

"Conversely, many Kashmiris would say that Afzal is a freedom fighter, planning an attempt at the symbol of Indian oppression," adds the statement, titled ‘Life, Not Death: Why Afzal Mustn’t Hang’. "Both views are flawed. For this multi-religious, multi-ethnic, multi-cultural state to survive, Indians have to believe in equal justice for all. And in the case of Jammu and Kashmir, there has been consistent failure to deliver on this promise."

A Kashmiri, supported by a wife who is a doctor and a lone teenage son, Mohammad Afzal, commonly called Afzal Guru, was found guilty of conspiracy in the attack on parliament which killed more than a dozen people. He was given the death penalty, which was upheld by the Supreme Court in 2004.

The sentence was to be carried out in 2006, but the execution was stayed following a mercy plea filed by Afzal Guru.

Although most nations across the globe – a total of 139 – have abolished the death penalty, India continues the practice, as the World Day Against the Death Penalty once again rolled around on Oct. 10.

India joined 53 other countries to vote against the December 2007 United Nations General Assembly moratorium on executions, passed with 104 votes in favour and 29 abstentions. However, Indian judges generally follow the 1983 Supreme Court ruling that the death penalty may be resorted to only in the "rarest of rare cases".

Afzal’s death penalty has not gone down well amongst various quarters in Kashmir. The separatist leaders view it as an unjust step, which would endanger the political situation in Kashmir

"I am completely against execution of Afzal Guru. He didn’t get a fair trial. Hanging him would be pure human rights violation," said Shabir Ahmad Shah, the chairman of the Democratic Freedom Party, a separatist organisation.

He says that Afzal’s hanging could have a negative impact on the situation in Kashmir. "When Maqbool Bhat was hanged in India’s Tihar jail in 1984, it was followed by insurgency. And if Afzal is also hanged, it will as well result in dangerous consequences," Shabir told IPS. "People would surely come on streets and protest against it as no Kashmiri wants his hanging."

The unrest in Kashmir has its roots back in 1947, when Britain granted India independence and the Muslim-dominated areas became part of Pakistan. A U.N. resolution, meantime, gave Kashmiris the option to join either Hindu-dominated India or Pakistan or to become independent. But Kashmiris had no chance to make a choice as their homeland is claimed by both India and Pakistan.

Roughly a third of modern-day Kashmir is administered by Pakistan while the rest is under India. But many Kashmiris challenge this, and protesters living on the Indian side rose up in arms in 1989 in an insurgency that simmers to this day.

Saying Afzal did not get a fair trial, Sajjad Lone, another separatist leader, said intellectuals, NGOs and civil society in general needs to stand up against Afzal’s execution, which he said "will not suit the people of Kashmir."

Hardline separatist leader of Kashmir Syed Ali Shah Geelani warned of "dire consequences" if Afzal Guru is hanged, saying in a statement in August that "it will unleash a storm."

Human rights activists and organisations have also criticised Afzal's death sentence, which they see as a human rights abuse.

"Afzal Guru's case is being adjudicated upon in terms of its politics, not in relation to the violations of process and hearing that have taken place. The death penalty has no place in a democracy," said Angana Chatterji, a professor of social and cultural anthropology at the California Institute of Integral Studies (CIIS) in San Francisco, and the co-convener of the International People's Tribunal on Human Rights and Justice in Kashmir.

Chatterji says despite the international movement to abolish capital punishment and the 2007 U.N. moratorium on executions, "India continues to impose the (death) penalty. The allocation of capital punishment continues to be influenced by racism, ethnocentrism, and class prejudice, authorising the state to act against a person's right to life."

Kashmir-based human rights activist Khurram Parvez, a co-founder of the Jammu and Kashmir Coalition of Civil Society (JKCCS), says the sentence handed down to Afzal was not based on a fair trial.

"If anyone reads that judgment, one would come to know that he was pronounced guilty on secondary evidence. No direct evidence was produced in the court against Afzal Guru," Parvez told IPS.

Citing the Supreme Court sentence, he said it states that "the incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender."

"When there is no evidence against Afzal, why should he be hanged? To satisfy the collective conscience of society, it appears India needs a sacrifice," Parvez added.

Advocate Faisal Qadri said the death penalty should be abolished in India. "I am completely against the death penalty. It is the worst kind of human rights violation. Humans have no right to kill anyone, even if it is a criminal."

And Qadri argued that in Afzal Guru’s case, capital punishment is completely unjustified: "Even India’s own leading lawyers admit that Afzal was not given a fair trial."

For ordinary people, the sentence handed to Afzal is a manifestation of India’s bias against Kashmiris.

"The Indian system is biased against Kashmiri people…there are scores of innocent Kashmiri youth who are arrested on the basis of mere suspicion and put behind bars for years with no evidence. How can we expect India to be just to Afzal?" said Iqbal (who provided only one name).

"Whenever any Kashmiri is found involved in any wrong act, India has to act in an unjust manner. That has been India's policy towards Kashmir," says Amina Maqbool, a political science student from the University of Kashmir

The HRW statement says the group "unequivocally opposes the death penalty. Guilty or not, we believe that neither Mohammad Afzal Guru, nor (law student) Priyadarshini Mattoo’s killer, Santosh Kumar Singh, nor (former Iraqi president) Saddam Hussein, nor anyone else, should be executed.

"Taking the life of a human being is inherently cruel, and as a form of punishment is unique in its irreversibility. The intrinsic fallibility of all criminal justice systems assures that even when there is a fair judicial process, innocent persons will still be executed. On a practical level, there is no evidence that it is an effective deterrent," it adds. (END)

Source: http://ipsnews.net/news.asp?idnews=105411
Accessed on 12th October 2011