Abolish Death Penalty India: Justice Deepak Gupta

Showing posts with label Justice Deepak Gupta. Show all posts

Wednesday, May 29, 2019

SC commutes man's death penalty to life term in murder case (Madhya Pradesh)

24 FEBRUARY 2019 Last Updated at 7:27 PM | SOURCE: PTI

New Delhi, Feb 24 The Supreme Court has commuted to life term the death sentence awarded to a man for killing his wife and five children on the ground of "unexplained delay" of four years by the Madhya Pradesh government in forwarding the mercy petition of the convict to the Union Home Ministry. The apex court said there was a delay of almost five years in deciding the mercy petition as the state authorities kept sitting on it and did not forwarded it to the home ministry for four years. Observing that a mercy petition is the "last hope" of a person on death row, a bench headed by Justice N V Ramana said that convict Jagdish had filed a mercy petition before the jail authorities on October 13, 2009, but his plea was forwarded to the Ministry of Home Affairs on October 15, 2013.

"The mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies," the bench, also comprising Justices Deepak Gupta and Indira Banerjee, said. "Keeping in view all the circumstances of the case, including the un-explained delay of four years in forwarding the mercy petition by the state of Madhya Pradesh leading to delay of almost five years in deciding the mercy petition and the fact that the petitioner has been incarcerated for almost 14 years, we are of view that regardless of the brutal nature of crime this is not a fit case where death sentence should be executed and we, accordingly commute the death sentence to that of life," the court said.

However, the bench directed that life imprisonment in the case would mean that convict will not be released from jail till his natural death. Jagdish had killed his wife and five children in August 2005 and the trial court had awarded him death penalty in April 2006. In June 2006, the Madhya Pradesh High Court had confirmed the death sentence awarded to him and later in September 2009 the apex court had dismissed his appeal. Thereafter, he had filed a mercy petition addressed to the President of India and the governor of Madhya Pradesh through the jail authorities on October 13, 2009.

His mercy petition was rejected by the President on July 16, 2014. Jagdish had then moved the apex court challenging the rejection of his mercy petition on the ground that there was a delay of almost five years in deciding the mercy petition and his death sentence should be commuted to life imprisonment. In its verdict, the apex court said that Madhya Pradesh government has given no explanation for the delay of over four years in forwarding the mercy petition to the home ministry.

"As far as the Government of India or the Secretariat of the President of India is concerned, there is no delay in dealing with the mercy petition and the same has been dealt with expeditiously," the bench said. "The delay in forwarding the (mercy) petition is totally un-explained and this court cannot countenance an un-explained delay of more than four years. We are dealing here with the case of a person who has been sentenced to death," it said. ABA MNL AQS AQS

Source: https://www.outlookindia.com/newsscroll/sc-commutes-mans-death-penalty-to-life-term-in-murder-case/1484971 (accessed on 29 May 2019)

Tuesday, February 19, 2019

2012 Delhi gangrape case: Victim’s parents want immediate execution of death row convicts (New Delhi)

By Express Web Desk |New Delhi |Updated: February 14, 2019 4:44:27 pm

Last year in December (2018), the Supreme Court had dismissed a Public Interest Litigation urging expedition of the procedure to hang the accused.

The parents of the 2012 Delhi gangrape victim on Thursday approached a Delhi court, seeking direction on the immediate execution of four death row convicts in the case. The court has slated the hearing for March 2. Last year in December, the Supreme Court had dismissed a Public Interest Litigation (PIL) urging expedition of the procedure to hang the accused. The PIL filed by lawyer Alakh Alok Srivasatava had sought direction from the central government to execute all the four death row convicts within two weeks.

A bench comprising Justices Madan B Lokur and Deepak Gupta later asked the petitioner, “What kind of prayer are you making?” It further said, “You are making the court a joke.” On July 9, 2018, the apex court had upheld its verdict of awarding the death penalty to the convicts in the December 2012 gangrape case. A three-judge bench had also rejected the review pleas filed by the three – Mukesh (31), Pawan Gupta (24) and Vinay Sharma (25) – of the four convicts. The apex court said the death row convicts failed to point out “error apparent on the face of the record” in the judgment.

In January this year, the top court asked the fourth convict to soon file his plea seeking review of its verdict upholding the death sentence awarded to him, saying the court “cannot wait” for long. A paramedical student was gang-raped and brutally assaulted by six men in a private bus and thrown out of it along with her friend. The victim was admitted to a South Delhi hospital. The victim later succumbed to her injuries.

Source: https://indianexpress.com/article/india/2012-delhi-gangrape-case-parents-move-patiala-house-court-immediate-execution-5584020/ (Accessed 19 February 2019)

Tuesday, December 25, 2018

Death-row convicts should be entitled to meet family, lawyers: SC

By PTI |New Delhi |Updated: December 13, 2018 9:56:48 pm

A bench headed by Justice Madan B Lokur said this while dealing with an application which had said that prisoners sentenced to death by any court have a right to be treated at par with other convicted prisoners and should be provided all similar facilities as are provided to others in jail.

Justice Madan B Lokur

The Supreme Court Thursday said death-row convicts should be entitled to meet family members, lawyers and mental health professionals so that their rights are adequately protected at all stages. A bench headed by Justice Madan B Lokur said this while dealing with an application which had said that prisoners sentenced to death by any court have a right to be treated at par with other convicted prisoners and should be provided all similar facilities as are provided to others in jail. The application had also sought a direction that solitary confinement of death row convicts or their separate and cellular confinement be struck down as unconstitutional. The bench requested the Justice (retd) Amitava Roy committee, constituted by the apex court to look into aspects of jail reforms across India, to look into the issues raised in the application in “greater depth”.

The bench, which also comprised Justices S Abdul Nazeer and Deepak Gupta, observed that the issue as to when a convict should be considered as a “death row prisoner” must be dealt with in a “humanitarian and compassionate manner”. Referring to an earlier verdict of the apex court, the bench said the law laid down in this regard was quite clear that a prisoner under sentence of death can only mean a prisoner whose capital punishment has become final, conclusive and indefeasible and which cannot be annulled and voided by any judicial or constitutional procedure.

“In other words, a prisoner can be said to be a prisoner on death row when his sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then, such a prisoner cannot be said to be under a sentence of death in the context of Section 30 of the Prisons Act, 1894,” the bench noted in its order.

“In our opinion, the decisions of this court have quite clearly defined when a prisoner could be said to be on death row and have also taken care of the rights of prisoners on death row as well as those who are a security risk. No further elucidation is necessary,” the court said.

The bench said rights of prisoners, as enunciated by the apex court, should be available in all the states and union territory administrations and they must modify the prison manuals, regulations and rules accordingly. “With regard to the entitlement of a prisoner on death row to have meetings and interviews with his lawyers or members of his immediate family or even mental health professionals, we are of opinion that such meetings and interviews should be permitted,” the bench said. It referred to earlier verdicts delivered by the top court and noted that a death-row convict was entitled to move within the confines of prison like any other convict undergoing rigorous imprisonment.

“However, certain restrictions may be necessary for security reasons, but even then, it would be necessary to comply with natural justice provisions with an entitlement to file an appeal,” the bench noted in its order. On September 25, the apex court had constituted a three-member committee, headed by Justice (retd) Roy, to look into the aspect of jail reforms across India and make recommendations on aspects, including overcrowding in prisons. The court had said the committee would also comprise Inspector General of Police of Bureau of Police Research and Development and Director General (Prisons) of Delhi’s Tihar Jail. The court had passed the order while hearing a matter relating to inhuman conditions in 1,382 prisons across India.

It had earlier taken strong exception to overcrowd of jails across the country and said prisoners also have human rights and cannot be kept like “animals”. The court had earlier passed a slew of directions over unnatural deaths in jails and on prison reforms across India.

Source: https://indianexpress.com/article/india/death-row-convicts-should-be-entitled-to-meet-family-lawyers-sc-5492629/ (Accessed 25 December 2018)

Supreme Court upholds constitutional validity of death penalty

PTI New DelhiNovember 28, 2018UPDATED: November 28, 2018 21:09 IST

According to Justice Joseph, the irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered.

Has death penalty in the statute served as a deterrent for heinous crime?

A three-judge bench of the Supreme Court in a verdict on Wednesday expressed different opinions on this with one saying that the provision of capital punishment has failed to become a deterrent and the other two holding that a larger bench had already decided its continuance in the rarest of rare cases. A three-judge bench comprising justices Kurian Joseph, Deepak Gupta and Hemant Gupta commuted the death sentence of a man and awarded him life term for murdering three persons including two women. Though the three judges differed on the applicability of death penalty, they were unanimous in commuting the death sentence of Chhannu Lal Verma. Justice Joseph, who is to superannuate on Thursday, while pronouncing the verdict, read his views on the applicability of death sentence.

Justice Kurian Joseph

Referring to the 262nd report of the Law Commission, Justice Joseph said, "The constitutional regulation of capital punishment attempted in Bachan Singh versus State of Punjab in 1980 has failed to prevent death sentences from being 'arbitrarily and freakishly imposed' and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice." He also said that till the time death penalty exists in the statute books, the burden to be satisfied by the judge in awarding this punishment must be high. According to Justice Joseph, the irrevocable nature of the sentence and the fact that the death row convicts are, for that period, hanging between life and death are to be duly considered.

"Every death penalty case before the court deals with a human life that enjoys certain constitutional protection and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as judges, which is guided by constitutional principles, cannot allow anything less than that," Justice Joseph, who wrote judgement for the bench, said. Justices Deepak Gupta and Hemant Gupta gave divergent opinion on the views expressed by Justice Joseph on applicability of death sentence and said a five-judge constitution bench in Bachan Singh versus State of Punjab in 1980 had already held the constitutional validity of death penalty provided in Indian Penal Code. "In our view, since the Constitution Bench in Bachan Singh vs. State of Punjab, has upheld capital punishment, there is no need to re-examine the same at this stage," justices Deepak Gupta and Hemant Gupta said. Justice Joseph, who wrote the verdict for the bench, also voiced his "anguishing concern" with regard to public discourse on crimes which have an impact on the trial, conviction and sentence in a case.

"The court's duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the court when it deals with the collective conscience of the people or public opinion. After all, the society's perspective is generally formed by the emotionally charged narratives. Such narratives need not necessarily be legally correct, properly informed or procedurally proper," he said. Justice Joseph, while referring to the law commission report said that the court plays a counter-majoritarian role in protecting individual rights against majoritarian impulses. "In this context, we may also express our concern on the legality and propriety of the people engaging in a 'trial' prior to the process of trial by the court," he said. Justice Joseph said that it has almost become a "trend" for the investigating agency to present their version and create a cloud in the collective conscience of the society regarding the crime and the criminal. "This undoubtedly puts mounting pressure on the courts at all the stages of the trial and certainly they have a tendency to interfere with the due course of justice," he said.

The three judges were unanimous on their view that the Chhattisgarh High Court in the case at hand has erroneously confirmed death penalty on the man without correctly applying the law laid down in Bachan Singh and other cases. "The decision to impose the highest punishment of death sentence in this case does not fulfil the test of rarest of rare case where the alternative option is unquestionably foreclosed," the bench said. It said that no evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced. It noted that the superintendent of the jail has given a certificate that his conduct in jail has been good during the pendency of his appeal in apex court for past four years. "Thus, there is a clear indication that despite having lost all hope, yet no frustration has set on the appellant. On the contrary, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would make amends and get reformed," it said.

Source: https://www.indiatoday.in/india/story/supreme-court-upholds-constitutional-validity-of-death-penalty-1398308-2018-11-28 (Accessed 25 December 2018)

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