Abolish Death Penalty India: Rishi Malhotra

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Thursday, May 30, 2019

Supreme Court India issues notice to Centre on death penalty in SC/ST cases

10 MAY 2019 Last Updated at 4:18 PM | SOURCE: IANS

The Supreme Court on Friday issued a notice to the Centre on a plea challenging the validity of a section which prescribes for mandatory death sentence in a case where an innocent member of a Scheduled Caste (SC) or a Scheduled Tribe (ST) is convicted and is executed as a consequence of false and fabricated evidence given by the accused. The action of a bench headed by Justice S.A. Bobde came on a public interest litigation (PIL) challenging the mandatory death penalty under section 3(2)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The plea was filed by advocate Rishi Malhotra. The advocate told the court that the provision is "manifestly arbitrary, disproportionate, excessive, unreasonable, unjust, unfair, harsh, unusual and cruel".

Under Section 3(2)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, whoever, not being a member of SC/ST, gives or fabricates false evidence intending thereby to cause any member of SC/ST to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life, and with fine, and if an innocent member of SC/ST is convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death.

Rishi Malhotra

The petitioner requested the court to strike down the provision with regard to mandatory death penalty as prescribed under Section 3(2)(i) of The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities) Act 1989. The petitioner said the said law is ultra vires of the Constitution and against the fundamental tenets of Constitutional laws. Citing various other sections which were quashed or amended by the court earlier, the advocate said: "As and when an occasion had arisen where the mandatory imposition of death penalty is called in question in different statutes, either this court by exercising its Constitutional powers of judicial review has struck down those provisions by holding it to be unconstitutional and void or the legislature itself has amended those provisions by removing the mandatory imposition of death penalty."

He mentioned Section 27(3) of the Arms Act which was declared void. He also told the court that the second part of Section 194 IPC is almost akin to Section 3(2)(i) of the Act but with a major difference in sentencing in as much as Section 194 IPC provides for an option of awarding death sentence or sentence of imprisonment for life. Similarly, Section 31A (1)(b) of the NDPS Act which initially provided for mandatory death sentence was rightly amended in 2014 by the legislature itself and further provided for an option of awarding death sentence or any other imprisonment as specified in Section 31 of the Act. Furthermore, if the mandatory death sentences are allowed to continue in the statute books, it would defeat the existence of very important provisions of the Code of Criminal Procedure namely 235(2) Cr.P.C. as well as Section 354 (3) Cr.P.C. both of which provide for hearing of an accused on the quantum of sentence, the advocate added.

Source: https://www.outlookindia.com/newsscroll/sc-issues-notice-to-centre-on-death-penalty-in-scst-cases/1531941 (accessed on 30 May 2019)

Sunday, December 23, 2018

Experts say lethal injection is not an alternative to hanging

Written by Sonakshi Awasthi |New Delhi |Published: January 17, 2018 2:36:10 pm

Although the law commission report discussed whether the discretion of mode of execution should lie with the judge or the convict, the question of who would provide the injections to convicts remains unanswered.

Raising an ethical issue, former president of the Indian Medical Association, KK Aggarwal, said a judge cannot force a doctor to give an injection.

A lawyer had filed a petition in the Supreme Court challenging the constitutional validity of a provision in the Criminal Procedure Code which provides that the mode of execution of death penalty would be hanging by the neck. The SC, however, said that it’s the Centre’s prerogative to decide the modes of carrying out capital punishment. “We can’t say what should be the mode of carrying out a death sentence. Tell us what is happening in other countries,” the apex court asked the Centre. In its reply, the Centre said lethal injection was “not workable” as there were several instances of it failing. Rishi Malhotra, the petitioner, said the provision of Criminal Procedure Code stating death penalty is “violative of Article 21 (right to life and liberty) of the Constitution” and being “barbaric, inhuman and cruel”. “There have been cases where the neck has been fractured, yet the man is alive,” Malhotra said.

Rishi Malhotra

The 187th report of the Law Commission on mode of execution of death sentence stated in length about the use of lethal injections as an alternative apart from other methods which were used earlier. The Commission received responses from high court and subordinate court judges on the report and it stated, “All of the 80% judges who are in favour of amendment of Section 354(5) have suggested that administering the lethal injection should be the other mode of execution of death sentence.” Most of the states in the US use lethal injections as an alternative means to end lives of convicts in cases of death penalty. However, administration of a lethal injection on a convict does come with complications and USA has been facing concerns regarding the method as well. “In some cases of death penalty in USA, the death has not been instantaneous. It has been prolonged over 15-30 minutes and with suffering,” said chairman of Fortis Escorts Heart Institute Ashok Seth.

Source: https://indianexpress.com/article/india/experts-say-lethal-injection-is-not-an-alternative-to-hanging-5028445/ (Accessed 24 December 2018)

SC dismisses plea to ban hanging as method of capital punishment

November 10, 2017

Rishi Malhotra, a lawyer, had petitioned the Supreme Court asking it to issue directions banning what he called the “cruel” method of capital punishment in India, which is death by hanging.

The apex court’s bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud on Friday (November 10) granted four weeks to the petitioner to file a counter affidavit. The petition has asked for death sentences to be given through lethal injections instead. The PIL is related to the death sentence given by courts in India by hanging under Section 354 (5) of CrPC. The Section states: “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”

The PIL had urged other alternatives for death penalty. According to the petitioner, the law commission in its 187th report had categorically said that hanging is a barbaric, cruel method to execute somebody so certainly this undermines the line of argument of law commission. On the previous hearing, the bench had said: “Prima facie we observe… the legislature can think of some other mode by which a convict facing the death sentence should die in peace but not in pain.”

Source: http://www.indialegallive.com/top-news-of-the-day/breaking-news-articles/sc-dismisses-plea-to-ban-hanging-as-method-of-capital-punishment-38966 (Accessed 23 December 2018)

Hanging to death: Supreme Court to examine mode of execution

By PTI |New Delhi |Published: October 6, 2017 7:43:14 pm

Lawyer Rishi Malhotra, who filed the PIL seeking relief under Article 21 (Right to Life) of the Constitution and said the Article must provide for the right of a condemned prisoner to have a dignified mode of execution.

‘Hang by the neck till death.’ This legal mode of executing a death row convict on Friday came under the scanner of the Supreme Court which sought the government’s response on a plea seeking setting aside of the legal provision. Terming the Constitution as a “compassionate” and “organic” guiding book, a bench headed by Chief Justice Dipak Misra said the legislature can think of changing the law so that a convict, facing death penalty, dies “in peace and not in pain”. The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, issued notice to the Centre and sought its response within three weeks on the PIL, which also referred to the 187th Report of the Law Commission advocating removal of the present mode of execution from the statute.

Lawyer Rishi Malhotra, who filed the PIL in his personal capacity, referred to Article 21 (Right to Life) of the Constitution and said it also included the right of a condemned prisoner to have a dignified mode of execution so that death becomes less painful. The plea said the Law Commission in its 187th Report had noted that there was a significant increase in the number of countries where hanging has been abolished and substituted by electrocution, shooting or lethal injection as the method of execution. “It had categorically opined that hanging is undoubtedly accompanied by intense physical torture and pain,” the plea said. The lawyer also referred to various apex court judgements in which the practise of hanging a death row convict has been assailed.

The plea said “dying with dignity is part of right of life” and the present practice of executing a death row convict by hanging involves “prolonged pain and suffering”. The present procedure can be replaced with intravenous lethal injection, shooting, electrocution or gas chamber in which death is just a matter of minutes, it said. The PIL sought quashing of section 354(5) of the Criminal Procedure Code, which states that when a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. It said that execution was not only “barbaric, inhuman and cruel”, but also against the resolutions adopted by the United Nations Economic and Social Council (ECOSOC).

The plea also said that execution should be as quick and as simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner’s apprehension. It sought to declare “right to die by a dignified procedure of death as a fundamental right as defined under Article 21 of the Constitution of India”. “This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out,” it added. Drawing a comparison, the petition said that while in hanging, the entire execution process takes over 40 minutes to declare prisoner to be dead, the shooting process involves not more than few minutes. In case of intravenous lethal injection, it is all over in 5 minutes. “The Act of the execution should produce immediate unconsciousness passing quickly into the death. It should be decent. It should not involve mutilation,” the plea added.

Source: https://indianexpress.com/article/india/hanging-to-death-supreme-court-to-examine-mode-of-execution-4877901/ (Accessed 23 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