Those on Death Row are Most Vulnerable and Marginalized (India)

Saurav Datta, 11 Dec 2018

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.

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. The right to fair trial – one of the most basic and statutory of constitutional guarantees, and the right against custodial torture and self-incrimination are routinely violated in death penalty cases, and the exclusion from the public good of fair trial rights takes place across different stages of the legal process in capital cases, and a complex set of institutional factors contribute to such exclusion. These are the findings of the India Exclusion Report 2017-18 which was recently released by the Centre for Equity Studies, a research and advocacy organisation based in Delhi.

Rampant Torture

Over 80 per cent of the convicts admitted to having suffered custodial torture. Out of 22 who were convicted and sentenced to death for terror offences, 16 revealed they had been tortured under custody. Out of the 92 who said they had confessed in police custody (and these confessions were used to convict them despite the statutory prohibition under the Evidence Act), 72, i.e., 78.3 per cent admitted to making confessions due to torture. The torture methods mirrored the torture in the notorious Guantanamo Bay - forcible anal penetration, waterboarding, sleep deprivation, tying one to a table while a venomous snake was left inside the room, electric shocks to private parts, severe beating, and the like.

False Pretexts, Abysmal Legal Representation

Many prisoners alleged malicious prosecution and false implication, Akira Begum (location not disclosed to protect privacy) said, "I left my sleeping son at home because the police called me to sign certain documents. I never got to go home after that.” Vatsal Singh narrated how he was called for questioning on an alleged bank robbery charge, and subsequently charged with murdering six members of a family. Atmaram, a death row convict from Maharashtra, narrated his woeful plight. After he was arrested on a murder charge, his pregnant wife and his children were picked up (without any legally valid reason) and locked up in a police station for four days and weren't allowed to communicate with anyone. The experience turned out to be so traumatic that his wife underwent an abortion immediately after being released.

In other cases, prison officials and personnel demand sexual favours from the wives of those condemned to death, in order to grant them their right to a weekly mulaqat (visit). Of the 191 prisoners who shared information regarding access to a lawyer at the time of interrogation, 185 (97 per cent) said they were not allowed to consult a lawyer. Of these 185, 82.6 per cent who spoke about their experience in custody said they had been subjected to torture. As for the quality of legal representation, 132 (36.6 per cent) were represented by legal aid lawyers at the trial court, while 227 (70.6 per cent) had access to a private lawyer. At the Supreme Court stage, this dropped to 71.4 per cent and 29.9 per cent respectively, thus showing how tough it is to access quality legal representation. In the study, even though there were some positive opinions on lawyers, they were far outnumbered by narratives of the lawyers’ lack of interaction with prisoners and their families, repeated demands for exorbitant sums of money and dereliction of duties by defence lawyers.

Exclusion of Marginalised Groups

Uttar Pradesh has the highest number of people on death row - 79 followed by Bihar (53), Karnataka (45), and Delhi (30). 279 prisoners (76 per cent) sentenced to death hail from backward classes and religious minorities. While the proportion of Scheduled Castes/ Scheduled Tribes amongst all sentenced to death was 24.5 per cent, it was significantly higher in Maharashtra (50 per cent), Karnataka (36.4 per cent), Madhya Pradesh (36 per cent), Bihar (31.4 per cent) and Jharkhand (30.8 per cent) amongst states with 10 or more prisoners on death row. Religious minorities comprised a disproportionate share of prisoners sentenced to death in Gujarat (79 per cent), Kerala (60 per cent) and Karnataka (31.8 per cent). On disaggregating the data on economic vulnerability for each social profile category, it was observed that 85.4 per cent of prisoners who were SC/STs were also economically vulnerable. This was in contrast to 64.4 per cent for those belonging to the general category.

Ending the Collective Silence

The report, as it explicitly clarified, doesn't intend to demand the abolition of capital punishment, but with the aid of data- 373 death row prisoners in 62 prisons of 29 Indian states, tried to address the excruciating agony of the sheer uncertainty which "condemned convicts" are forced to face day in day out. Accompanied with this is the fact that 41 non-homicide offences in all the central legislations carry the death penalty as the maximum punishment, while there are only 13 homicide-related offences that do so.  This is in stark contrast to the United States, where its apex court ruled that "awarding" death penalty in non-homicide cases (such as rape) is illegal and unconstitutional. But India's lawmakers, especially after the December 2012 Delhi gangrape case, have demonstrated a predilection of baying for the blood of those who they feel shake "the collective conscience of society".

The researchers recount how difficult it was to gather data and how they had to go take the RTI (Right to Information) Act route, approaching the National Legal Services Authority, and the prison authorities to even get to know the total number of people on death row. Maharashtra straightaway refused interview access to death row convicts with the argument that all were terror-offence convicts and voicing their opinions could jeopardise national security. This gut-wrenching report, which seeks to narrate and portray the plight of death row convicts "in the hope that this will end our collective silence" should nudge the establishment and the judiciary. But hopes remain dim.

Source: https://www.newsclick.in/those-death-row-are-most-vulnerable-and-marginalised  (Accessed 25 December 2018)

Lynchings Show Mindset Comfortable With Death Penalty: Gopalkrishna Gandhi

Press Trust Of India

Updated:December 4, 2016, 12:27 PM IST

Acts like lynching of Mohammad Akhlaq show a mindset that is entirely comfortable with the death penalty, wholly exculpatory of torture as a means of extorting confessions, says Gopalkrishna Gandhi who is a known campaigner against capital punishment.

Acts like lynching of Mohammad Akhlaq show a mindset that is entirely comfortable with the death penalty, wholly exculpatory of torture as a means of extorting confessions, says Gopalkrishna Gandhi who is a known campaigner against capital punishment. Gandhi has come out with a new book Abolishing The Death Penalty: Why India Should Say No To Capital Punishment, published by Aleph Book Company, in which through in-depth analysis and marshalling of considered opinion of jurists, human rights activists, scholars and criminologists among others, he argues why the death penalty should be abolished with immediate effect in India.

According to Gandhi, death penalty asks to be questioned on grounds of the right to life, the right to self-defence against battery, assault, homicide and murder. "States that keep the death penalty alive and do not realise the absurdity of that oxymoron may not be accused of a sadistic pleasure in dealing death. But they cannot be exempted from the accusation of deriving a sense of pleasure in the death penalty as a power, a perquisite, a prerogative that no one else enjoys," he writes. The former West Bengal governor says the power to commute a death sentence to one of life imprisonment is part of the power of the death penalty.

File photo of former West Bengal Governor Gopalkrishna Gandhi (Getty Images)

"And even in the exercise of that pardoning prerogative, the state is using its exceptional privilege, its unique power. It is the exclusivity of this power, in its extreme nature, and indeed in its exceptionality that it is tantamount to a reserved 'pleasure'. And it is in that privileged uniqueness that it is so outrageously capricious and so flagrantly promiscuous," he argues. Gandhi, currently distinguished professor of history and politics at Ashoka University, says public opinion in India has always been "death-penalty minded" and is now even more so. "It is in fact more retribution-minded, vengeance-minded and geared to dealing death," he says. He then cites the lynching of a prisoner detained on suspicion of rape in Dimapur in Nagaland last year which included him being dragged out of jail, stripped, paraded naked and then beaten to death, in mob adjudication.

"The mob-lynching and murder of Mohammad Akhlaq in a village in Uttar Pradesh on September 28, 2015 on the rumour that he had killed a cow and eaten its meat, is another grim instance of mob fury that stops at nothing less than killing. These acts show a mindset that is entirely comfortable with the death penalty, wholly exculpatory of torture as a means of extorting confessions," Gandhi writes. Abolishing the death penalty, he says, is not about the final punishment from which there is no return but about the first principle of penology which is about return, a return to civility. "The debate about the death penalty lies beyond 'to hang or not to hang' to a discussion on the criminal investigation system, on the law's transparency, the state's impartiality, a civilised penology," he says. "We do not choose to be born. But once arrived, we do choose, through programmed genomes, instinct and will, to stay alive. In fact, we do more than choose. We resist anything that comes in the way of our staying alive. That resistance is built into the apparatus of staying alive," he says.

In the book, Gandhi asks fundamental questions about the ultimate legal punishment awarded to those accused of major crimes. Is taking another life a just punishment or an act as inhuman as the crime that triggered it? Does having capital punishment in the law books deter crime? His conclusions are unequivocal: Cruel in its operation, ineffectual as deterrence, unequal in its application in an uneven society, liable like any punishment to be in error but incorrigibly so, these grievous flaws that are intrinsic to the death penalty are compounded by yet another - it leaves the need for retribution (cited as its primary 'good') unrequited and simply makes society more bloodthirsty.

Source: https://www.news18.com/news/india/lynchings-show-mindset-comfortable-with-death-penalty-gopalkrishna-gandhi-1319076.html (Accessed 22 December 2018)

Jigisha Ghosh murder case: Two convicts get death sentence, life imprisonment for one (New Delhi)

Written by Aamir Khan |New Delhi |Updated: August 23, 2016 7:21:02 pm 

Jigisha, an operations manager at Hewitt Associates Pvt Ltd in Noida, was abducted and murdered in March 2009. 

Pointing out the need to curb “gruesome crimes” against women, a Delhi sessions court Monday awarded the death penalty to two of the three men convicted of abducting and killing IT executive Jigisha Ghosh in 2009.“Crime in the present case was committed against a woman. Gruesome crimes against women are on the rise in recent years,” observed Additional Sessions Judge Sandeep Yadav. The court, therefore, decided not to show any leniency in such cases as it would have sent a “very wrong message” to the society and “encourage” criminals like the three convicts.

“Passing appropriate sentence in such cases will go a long way in arresting the increasing trend of crime against women,” said the court. It added that “protection of the society and deterring criminals was the avowed object of law, achieved by imposing appropriate punishment”. While Ravi Kapoor and Amit Shukla were awarded capital punishment, Baljeet Malik was sentenced to life imprisonment, given the scope of his reformation. The trio had been held guilty earlier this year under relevant provisions of the Indian Penal Code including murder, abduction and robbery. 

Following the conviction of the accused, the court had directed the Delhi government to appoint a Probationary Officer (PO) to get information from the jail, a clinical psychologist, sociologist, parents of the convicts and their neighbours on the conduct of the accused. The report, deliberating whether or not the convicts could be reformed, was relied upon by the court before it decided on the quantum of their punishment. 

The court observed that the crime was carried out “in cold blood” and in an “inhuman and cruel” manner. “The innocent, helpless and vulnerable victim remained in the captivity of the convicts for hours. The victim pleaded to the convicts not to take her life. She handed over her debit card and other belongings to the convicts. She also disclosed to them her debit card PIN number. However, the convicts were satisfied only by brutally mauling her to death. In other words, the convicts behaved in an uncivilised and barbaric manner against a helpless girl,” said the court. According to the court, which took into consideration the PO’s report, the “magnitude” and “brutality” shown by the convicts while killing Jigisha was enough for the case to fall in the “rarest of rare” category.

In Kapoor’s case, the PO did not see any room for reformation. The report asserted that the convict, if shown leniency, would be a threat to the society. “Since there is no possibility of reformation and rehabilitation of Kapoor, and apprehension that he will continue to be a threat to the society, the convict deserves death penalty,” the court observed from the report. For Shukla too, the PO’s report sought death penalty, pointing out his notorious behaviour and unsatisfactory conduct. “It is also mentioned in the report that an extortion case was registered against convict Amit Shukla while he was in jail,” said the court.

The report also said Shukla had been booked in seven other cases, including a murder case, and sought death penalty. Contrary to the report on the duo’s conduct, Malik was found to be “good-natured” and showed “scope of improvement”. “Baljeet Malik has been a well-behaved boy in his village. He was 20 at the time of commission of crime. It appears he got involved in the crime because of his association with bad elements and, hence, he should be given a chance to reform and rehabilitate himself,” said the court. The court also found it to be a fit case of compensation to the victim’s parents. Taking note of a report filed by the case’s investigating officer Atul Kumar, the court observed that Shukla and Baljeet were financially sound and had both moveable and immovable properties.

Of the total fine imposed on the three convicts, the court directed that Rs 6 lakh in compensation be paid to the parents of the victims. “No amount of compensation can alleviate the agony, pain and trauma of the parents of the victim… However, monetary compensation would provide some solace,” said the court. The District Legal Service Authority (south), has also been directed to provide adequate monetary aid to Jigisha’s parents. 

Source: https://indianexpress.com/article/india/india-news-india/jigisha-ghosh-murder-verdict-death-for-2-life-for-1-2990018/

Chhattisgarh: Man gets capital punishment for rape, murder of 3-year-old

By PTI |Raigarh |Published: June 18, 2016 10:35:36 am

A fast-track court on Friday sentenced a 23-year-old man to death for sexually assaulting and murdering a three-year-old girl.

Terming the offence as "rarest of the rare", the judge said the convict is a threat not only to the society but to humanity. Additional District and Sessions Judge Yogesh Pareek convicted Lochan Srivas, a resident of Bajrang Para locality, and awarded him capital punishment, Deputy Director (Prosecution) Kripal Singh Gavaskar said. Terming the offence as “rarest of the rare”, the judge said the convict is a threat not only to the society but to humanity. On February 24, Srivas took the girl, who was playing in the locality, to his house and raped her, the prosecution said. The accused then strangled her, kept the child’s body in a sack and threw it in Sangitarai area, Gavaskar said.

Following the victim’s mother’s complaint, the accused was arrested on the charges of rape and murder and chargesheet was filed in court on April 26, he said. After hearing the arguments, the judge in his 58-page order convicted Srivas under sections 377 (unnatural sex), 30 (murder), 363 (punishment for kidnapping) of IPC, besides section 6 of Protection of Children from Sexual Offences (POCSO) Act, Gavaskar said. The judge imposed a fine of Rs 8,500 on him, and if he fails to pay the amount, he would have to undergo additional imprisonment of one-and-a-half years, Gavaskar said. The court also directed the state government to pay compensation of Rs 5 lakh to the kin of the deceased after the period allowed for appeal by the convict ends, he added.

Source: https://indianexpress.com/article/india/india-news-india/chhattisgarh-man-gets-capital-punishment-for-rape-murder-of-3-year-old-2860307/ (Accessed 20 December 2018)

Man awarded death penalty for ‘waging war against country’

By PTI |

Bongaon (wb) |

Published: December 15, 2018 5:31:40 pm

In April 2007, BSF had apprehended four persons, including Samir, on suspicion of being members of a terror outfit and handed them over to the local police. A district court on Saturday sentenced Sheikh Abdullah Nayeem alias Sk Samir, who had links with terror outfit Lashkar-e-Taiba, to death for “waging war against the country”. Additional district sessions judge of Bongaon fast-track court, Binoy Kumar Pathak, passed the death sentence after finding Samir guilty of the charges against him.

In April 2007, BSF had apprehended four persons, including Samir, on suspicion of being members of a terror outfit and handed them over to the local police. The West Bengal CID, which took over the probe, had charged them with waging war against the country and procuring arms and explosives, apart from other charges. The three others — Mohd Younis, Sk Abdullah and Muzaffar Ahmed Rathore — had been sentenced to death in 2017 by the same court.

Samir had escaped police custody in 2014 during transit when being taken to Mumbai in connection with the trial in a different case in Maharashtra. He was again arrested in 2017 by NIA from Delhi and was handed over to the West Bengal CID. The court, which declared Samir guilty on Tuesday, was scheduled to announce quantum of sentence on Saturday. Apart from the death sentence, the court also imposed a penalty of Rs 50,000 on Samir.

Source: https://indianexpress.com/article/india/man-awarded-death-penalty-for-waging-war-against-country-5495297/ (Accessed on 18 December 2018)

Six handed death sentence since 2013 for crimes against women in Madhya Pradesh

A total of six persons have been awarded the capital punishment in cases pertaining to crimes against women in Madhya Pradesh in the last two years after the state government strengthened its prosecution to check the high rate of such violations. "Six men have been handed the capital punishment for crimes against women since January, 2013," said Joint Director Pradeep Bhatia of MP Police's Public Relations. He said that 484 cases of crimes against women have been disposed of by trial courts since January, 2013. Life imprisonment was awarded in 42 cases while 59 cases saw the convicts receiving jail terms of more than 10 years.

In 377 cases, the prison sentences were of less than 10 years' duration. In 2012, 808 cases of crimes against women were registered in the state. In two cases, courts handed down the death sentence while life imprisonment was awarded in 137 cases. A sentence of 10 years or more was passed in 137 cases, 5 years' imprisonment or more in 241 cases and less than 5 years' imprisonment in 291 cases, Bhatia said.

Source: http://www.dnaindia.com/india/report-six-handed-death-sentence-since-2013-for-crimes-against-women-in-madhya-pradesh-2057096 [last accessed 11.03.2015]

Bihar - Man awarded death sentence for kidnapping, killing child

TNN | Sep 7, 2014, 02.06AM IST KATIHAR: A Katihar court on Friday awarded capital punishment to one Bijan Mahto, a resident of Rajiganj under Korha police station area, in a kidnapping-cum-killing case of a child in 2012. Delivering the judgment, the court-II of additional district and sessions judge (ADJ) Raghupati Singh also imposed a penalty of Rs 50,000 on the accused. Mahto was charged with kidnapping the boy and throwing his body at Boro ghat. This is the second such case where a Katihar court has awarded the capital punishment. Mahto will also be undergoing one year rigorous imprisonment in case he fails to pay the penalty Additional public prosecutor (APP) Rajendra Mishra, giving graphic details of the case, said that a two-and-a-half-year-old boy Suman Kumar, son of a middle school teacher Hira Lal Mahto, was kidnapped on January 19, 2012. The toddler's father lodged an FIR with Korha police station on January 20, 2012, when he failed to trace his son. On the confessional statement of abductor Bijan Mahto, who was arrested on January 20, the infant's body was recovered from Boro ghat on January 21, 2012. Source: http://timesofindia.indiatimes.com/City/Patna/Man-awarded-death-sentence-for-kidnapping-killing-child/articleshow/41897844.cms [last accessed 06.02.2015]

The danger in precedents

February 26, 2014 01:33 IST 

Opinion: The Hindu 

It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty The recent judgments of the Supreme Court have shifted the focus back to capital punishment in India. The jurisprudence of death penalty is as inconsistent as it is confounding in most cases. The recent cases have, however, tried to usher in greater clarity in dealing with the death penalty law and its execution. The decision of the Tamil Nadu government to set free the assassins of former Prime Minister Rajiv Gandhi has added another dimension to the debate. In the light of these developments, it is important to take stock of the evolution of capital punishment in India while evaluating the probable ramifications of the Tamil Nadu government’s decision. 

The ‘rarest of rare’ test The ‘rarest of rare’ test was laid down by the Supreme Court in 1980 in the Bachan Singh case. The judgment also made it incumbent on the state to adduce sufficient evidence that there is no scope of reform for the accused in the slightest. Further, an analysis of the aggravating and mitigating circumstances must be made to ascertain if death alone is the most appropriate punishment in a given case. Therefore, the significance of the judgment also lay in seeking to strike a balance between the crime and the criminal in doling out the sentence by the courts. However, as was pointed out by the Court in Santosh Bariyar (2009), many subsequent cases have focused only on the crime while looking away from the criminal while awarding the death penalty. 

The Supreme Court felt in Gurvail Singh (2013) that the time was ripe to develop the legal position to be socially more accommodative, while moving a step away from the “principled stand” as propounded in the Bachan Singh case. Gurvail Singh has been referred to in the Ram Singh case, dealing with the December 16 Delhi gang rape, where the sessions court took note of the exceptional depravity and extreme brutality of the crime which aroused “intense and extreme indignation of society.” The ‘extreme misery’ suffered by the victim and ‘grave impact’ of the crime on the ‘social order’ were stated as the reasons behind the ruling. The result is that there is a tilt towards the crime as compared to the criminal. 

On the other hand, the Supreme Court in the Sushil Sharma case held that death penalty is entirely avoidable given that there are grounds of reform available for the convict. In the case of Shatrughan Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture. However, the case of Devinder Pal Singh Bhullar took the death penalty jurisprudence to another level in ruling that there was a difference in treatment to be meted out to convicts under the Indian Penal Code and those convicted under special terror laws. For the latter, undue delay cannot be a valid ground to commute the death penalty. In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down per incuriam. It is noteworthy as it buttresses the extremely high limit set to achieve the threshold of ‘rarest of rare,’ albeit implicitly. 

From the above discussion on judicial precedents, it is evident that there is great subjectivity involved in deciding what constitutes the gravest of circumstances that could justify the state to take away life. The Tamil Nadu government has decided to set free the convicts in the Rajiv Gandhi assassination, exercising its power under Sections 432 and 435 of the Code of Criminal Procedure, 1973. This assumes further significance as Section 435 mandates consultations with the Union government when the conviction is under central laws. Acknowledgment of the grave injustice in the undue delay in execution by the highest court of the country does not wash away the fact and gravity of their crime that has been proved beyond reasonable doubt. In deciding to release them, the Tamil Nadu government is surely entering a risky territory which may set loose a politically-charged atmosphere and set a dangerous precedent. 

The governments concerned must handle such cases with astute political wisdom and maturity, as it is their responsibility to ensure citizens’ safety. If there is relaxation shown to a criminal convicted of something as deplorable as the assassination of the former Prime Minister, then it begs the question as to what could be an effective deterrent for criminals in the future. This stand puts our internal security at peril, when communal and left wing forces are on the rise, in addition to the sustained terror threats from across the border. Against this backdrop, it is important to consider the cases of Ajmal Kasab and Afzal Guru. Both these cases marked a break in the so-called self-imposed moratorium on death penalty by the Indian judiciary. And both cases involve matters of national security and instances of terrorism. 

This itself proves that accompanied with executive expediency, death penalty has been justified for the perpetrators of grave criminal and terrorist activities — at least till the time that it exists in our legal system. Retention of death penalty A key question to ask at this juncture is whether it is too ambitious to expect a correlation between the crime rate and death penalty in a jurisdiction where the wheels of justice are eternally slow. For us to be able to fairly introspect on the justifiability of the death penalty, a lot rests on the executive promptness in dealing with existing cases. By creating an additional ground for commuting the death sentence solely because of the lack of executive promptness, the Supreme Court may be subtly pushing India into a territory of no capital punishment, but the legislative intent is ostensibly at deviance. 

India voted against the Record of Votes on the U.N. General Assembly Moratorium Resolution, 2012, just as it had in the past. The Human Rights Council recommended in its Universal Periodic Review 2012 that India should establish an official moratorium on execution. While trying to move towards abolishing the death penalty completely, India should also commute all death sentences into life imprisonment terms and ratify the Second Optional Protocol to the ICCPR. Both of these recommendations India did not agree with. There seems to be greater judicial clarity in cases of mandatory death punishments in India. Recently, the Bombay High Court ruled in the India Harm Reduction Network case that the mandatory death penalty for drug offences was “unconstitutional.” However, instances of specific legislations still upholding death penalty still subsist. For example, the Piracy Bill has a provision of death penalty, as does the Narcotic Drugs and Psychotropic Substances Act of 1985. Clearly, the Union Legislature seems decided about retaining capital punishment, at least for the time being. 

Every time a crime captures the national imagination, there is a hue and cry to overhaul the legal system, and bring in place more stringent norms. But what is often not really emphasised is the lax implementation. There is hardly a sustained clamour for a better managed police system of the country. There is no serious effort at a fast-paced judiciary to clear the immense backlog of cases. It is this laidback implementation that is often hidden behind the grandiose idea of ‘rule of law.’ Accountability of public institutions and functionaries needs to be strengthened. It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty. 

(Abhishek Tripathy is a lawyer.) 

Source: http://www.thehindu.com/opinion/op-ed/the-danger-in-precedents/article5726541.ece [accessed 24 April 2014]

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]

Derby cousin’s tears of joy as professor is off Death Row after 19 years

By Derby Telegraph | Posted: April 16, 2014

By Joey Severn

THE cousin of a man who has been on Death Row for more than 19 years has spoken of her delight that his sentence has been commuted. Kamalpreet Kaur, of Littleover, has not seen her cousin, Professor Devender Pal Singh Bhullar, since he was sentenced to death in India. The family, along with members of the Sikh community in Derby and across the world, joined together to lobby for his release. And that dream has taken a step closer to becoming a reality after he was finally released from Death Row. Mrs Kaur said: “I first received a call from India and later I spoke to his wife. “I was very happy when I heard. I was crying because it was so emotional. “We are hoping that he will be free soon and that we will be able to see him again. “I last saw him in 1991.

He has been imprisoned and later on Death Row for more than 19 and a half years; his mental and physical health has been seriously affected.” Mrs Kaur, who travelled from the Punjab to live in Derby in 2001, believes that her cousin has been wrongly imprisoned for a crime that he did not commit. Derby campaigner Bhajan Singh Dheansay said that Professor Bhullar’s father, uncle and best friend were murdered in 1991. He said: “Those people were murdered by the state in the Punjab because the professor was a lecturer and 42 of his students went on a demonstration and never came back. “The professor started asking questions about the system and, because of this, his father, brother and best friend were murdered.” Professor Bhullar was then accused of detonating a car bomb in Delhi in 1993 in an attack on a politician. The professor fled to Germany in an attempt to gain political asylum but was deported back to India.

At his trial he was found guilty and sentenced to death. He has spent more than 19 years not knowing if he would see the next day and, despite various appeals, his suffering has meant he was placed in a psychiatric ward for prisoners. But now Professor Bhullar’s sentence has been commuted to life, giving the family hope that he could be soon released. Mrs Kaur said: “It has been extremely hard for all the family, particularly for his wife and his mother. This is the first good news that we have had in all those long years. “I would like to thank every one who has helped over the years, especially the Sikh community in Derby and MPs, including Chris Williamson. “We dearly hope and pray for Professor Devinder-Pal Singh to be home again with his family.” Sikh community leader Jaz Rai said: “The love and support that we have seen from the Sikh community and the wider Derby community has been fantastic. “It is good news that he is now off Death Row. “The next step is to have him released but he has already been in prison for a life sentence.

“I would also like to thank the Derby Telegraph who have helped highlight the case of the sorts of injustices that are going on in what is supposed to be the biggest democracy in the world.” Labour Derby North MP Mr Williamson, who is the secretary of the cross-party group of MPs focused on the global abolition of the death penalty, backed the campaign. He said: “It is fantastic news but now the campaign to get him fully released begins. “I believe his conviction is unsafe and I will be continuing to support the campaign and the family to see him freed.”

Source: http://www.derbytelegraph.co.uk/Derby-cousin-8217-s-tears-joy-professor-Death-Row/story-20961394-detail/story.html [accessed 24 April 2014]

NO NOOSE IS GOOD NEWS

Wednesday , April 16 , 2014

In 13 months, the President has rejected 13 mercy petitions. The Supreme Court on the other hand has commuted the death sentences of 19 convicts this year. Should the court’s moves prompt the government to review the necessity of capital punishment, asks Smitha Verma Navneet Bhullar is a woman on a mission. For two decades, she has struggled to save the life of her convicted husband. Now Bhullar is on what could be the last leg of the campaign — his release from jail. Last month, the Supreme Court commuted Devinder Pal Singh Bhullar’s death sentence to life on grounds of delay in deciding his mercy plea and on the basis of his medical condition. Termed a terrorist with the Khalistan movement, he was convicted for bomb blasts that shook Delhi in 1993.

Subsequently sentenced to death, his mercy plea was rejected by the President in 2011. “Having spent 19 years and three months in jail, without any parole ever, he should now be released soon,” says Bhullar, 47, who spent only two months with her husband in their 22 years of marriage. These days, the Canada resident’s life revolves around her lawyer’s office and the hospital where her husband is being treated for depression. “The death sentence has become a political tool. And so have mercy pleas and remission,” she adds. The issue of death penalty is back in the news. After the December 2012 gang rape in Delhi, the law dealing with rape was revised. The amended Section 376E of the Indian Penal Code (IPC) provides for death in cases of repeat offenders.

Earlier this month, a sessions court in Mumbai sentenced three people to death for rape because they were repeat offenders. But the country has been witnessing conflicting views on execution. In 13 months, President Pranab Mukherjee has rejected 13 mercy petitions awarding the death penalty to 17 convicts — the highest for a President in the last 16 years. But the judiciary has seemingly taken a different turn. In a landmark judgment in January, the Supreme Court commuted the sentence of 15 condemned death row convicts to life. The decision was taken in view of the “inordinate delay” by the government in deciding on their mercy pleas. The court on similar grounds commuted the death sentence of Rajiv Gandhi’s killers to life in February.

This year, 19 death row convicts have been granted life by the Supreme Court. The President’s powers to grant pardon arise from Article 72 of the Constitution which empowers him to pardon, grant reprieve or suspend, remit and commute the sentence of a person convicted of any offence. The President is guided by the home minister in his decision. Among the first mercy petitions to be disposed of by Mukherjee included that of Mumbai 26/11 terrorist Ajmal Kasab. He was executed in November 2012 which was the first hanging after 2004. Four months later Afzal Guru was hanged for his involvement in the 2001 Parliament attack case. Of course, many believe that the death penalty is an essential part of justice. Execution, they argue, is a deterrent to crime. “In terms of punishment, humans fear death the most. It has both sociological and psychological impact,” says Supreme Court lawyer Pinky Anand. “It works as a punishment to criminals and as a deterrent to society.” Anand doesn’t agree with people who argue that the death penalty doesn’t bring down the crime rate. “There can never be any statistics to show how many people stopped committing a crime for fear of this punishment,” Anand adds.

Global human rights watchdog Amnesty International believes India is not giving a clear message on where it stands. “While the President has a record number of rejections of mercy petitions, the Supreme Court has shown the way for a progressive and humanitarian India where the degrading practice of executions has no place,” says Divya Iyer, senior researcher, Amnesty International India. According to Mumbai-based human rights activist and lawyer Yug Mohit Choudhry, the apex court’s position is not new. “In 1982, the Supreme Court in the case of Bachan Singh vs State of Punjab upheld the constitutionality of Section 302 of the IPC, which prescribes the death penalty as punishment for murder. And in so upholding its validity, the court prescribed that the death penalty be accorded only in the ‘rarest of rare cases’,” Choudhry explains. “While earlier, death was the norm and life term an exception, after the Bachan Singh case our courts turned this around.” Despite these moves, India was among the 39 countries in 2012 which voted against a UN General Assembly draft resolution calling for abolishing the death penalty. India had argued that each state had the sovereign right to determine its own legal system.

The apex court’s concern, on the other hand, is over not just the long wait that people on death row have to go through, but also over cases where death is not merited. Between 2000 and 2011, 130 death sentences were pronounced by the trial courts on an average every year. “But only three or four were upheld by the Supreme Court every year,” Choudhry says. Amnesty International’s latest report says that there are 435 convicts on death row with appeals at various stages — from high courts to clemency petitions awaiting the President’s nod. In the last 18 years, only three people have been executed, with the last two executions happening in the last two years.

But the December 16 incident has triggered a move towards an increase in death sentences. “Death sentences by trial courts since then are at their peak,” says Anup Sundernath, who heads the death penalty research project at the National Law University, Delhi. The project which will come up with its report later this year highlights the fact that sexual crimes are attracting death from the trial courts as a norm now. “The executive wants to show that we are tough on crime and by rejecting mercy petitions they think they can contain the current public outrage against lawlessness,” Choudhry says. Last year, 14 retired judges wrote to the President, pointing out that the Supreme Court had erroneously given death to 15 people from 1996. Two of them were hanged.

The judges called this “the gravest known miscarriage of justice” since Independence. “Yet in recent months, our government has shown an alarming tendency to implement the death penalty,” rues Saswati Debnath, a senior researcher with Human Rights Law Network, a Delhi-based non-government organisation. Many believe that the time has come for the government to reconsider its position. “The government should now build on these progressive judgments to review the legality and necessity of capital punishment, declare an immediate moratorium on executions, with a view to abolishing the death penalty,” Iyer says.

Source: http://www.telegraphindia.com:8080/1140416/jsp/opinion/story_18194968.jsp#.U1ic3vmSwrU [accessed 24 April 2014]

Three sentenced to death for gang rapes in Mumbai

BY NIVEDITA BHATTACHARJEE AND SHYAMANTHA ASOKAN MUMBAI/NEW DELHI

Fri Apr 4, 2014 5:50pm IST Reuters

Three men were sentenced to death on Friday for two gang rapes last year in Mumbai, including an attack on a photojournalist that sparked protests in the city and raised fresh questions about attitudes to women in the world's largest democracy. A Mumbai court on Friday sentenced Vijay Jadhav, Kasim Bengali and Mohammed Salim Ansari to death, the first time capital punishment has been given for rape not involving the death of the victim.

"There was no chance of reformation in these men and this sends a strong signal to society," special prosecutor Ujjwal Nikam told reporters outside the court. Women's safety in India has been under the spotlight since the gang rape and murder of a student on a bus in Delhi in 2012, which provoked nationwide protests and the introduction of tougher sexual assault laws. But a stream of high-profile attacks has raised concerns that little has changed.

In the Mumbai case, four men were convicted last week of gang-raping the photojournalist, who was attacked in the early evening of August 22 while on an assignment with a male colleague at an abandoned textile mill. Three of them were given the death penalty because they had also been found guilty of raping another woman at the same location in July. The fourth man received a life sentence and a juvenile charged for his involvement in the case is being tried separately.

 "I think the court has given a distinct, definite and welcome verdict," said Himanshu Roy, joint commissioner of police in Mumbai. The attack on the photojournalist provoked a public outcry partly because Mumbai, India's financial capital and the home of Bollywood, is considered one of the country's safest cities for women. Mahalaxmi, the neighbourhood where the two rapes took place, is a central district close to many new offices and bars.

(Additional reporting by Aradhana Aravindan in Mumbai; Editing by Tony Munroe, Sanjeev Miglani and Ron Popeski) 

Source: http://in.reuters.com/article/2014/04/04/mumbai-gangrape-photojournalist-verdict-idINDEEA3308W20140404 [accessed on 24th April 2014]

Man gets death penalty for killing three siblings

PTI | May 5, 2013, 02.14 PM IST

BILASPUR: A man has been sentenced to death by a local court here for abducting and killing three minor siblings in February 2011 in Ratnapur town of the district.

First additional district and sessions judge Neeta Yadav yesterday sentenced - Manoj Suryawanshi - to death for abducting and killing the children from his neighbourhood.

According to police, Suryawanshi had kidnapped his neighbour Shivlal Dhivar's children - Vijay (8), Ajay (6) and Sakshi (4)- on February 11, when they were returning from school.

The accused took them to a nearby field where he killed them by hitting them with stones.

He was arrested the next day. According to prosecution, the accused committed the crime to take revenge against Shivlal's brother Shivnath. Suryawanshi believed that his wife had eloped with Shivnath.  

Source: http://timesofindia.indiatimes.com/city/raipur/Man-gets-death-penalty-for-killing-three-siblings/articleshow/19894498.cms [accessed on 5th May 2013]

The Great Wait: India’s Death Row Prisons

By Michael Edison Hayden

February 21, 2012, 10:00 AM IST

At the end of this month, a young man named Suresh will mark an unspeakable anniversary. Fourteen years ago, on Feb. 28,1998, his mother Jayshree was raped and slaughtered by the man referred to by tabloids as “India’s Jack the Ripper.” And while the killer, whose real name is Umesh Reddy, was sentenced to death, it remains unclear as to when, if ever, the case will be resolved.

Mr. Reddy currently resides in Belgaum Central Prison, a spacious facility filled with lush green grass, gray dungeon-like dwellings, and a theatrical hangman’s pit intended for executions that one guard reported to me had not been used “in well over 25 years.” Rust has accrued along the metal beams of the gallows. Down below, inside the stairwell in which inmate’s bodies are intended to fall, globs of rainwater, leaves, and dead insects cluster against the mossy pavement. A fortress-like encasement of giant, peeling walls topped with angry-looking barbed wire blocks the outside world from the prisoners.

Make no mistake: Belgaum Central is a bleak and forbidding place. Mr. Reddy’s cellmates are a collection of South India’s most fearsome criminals. A serial rapist and killer in his own right, he regularly fraternizes with a man who refers to himself as “Dr. Ibrahim” –the leading plotter of the Bangalore bomb blasts, which destroyed Christian churches and lives back in 2000.

When we met, Mr. Reddy asked if Ibrahim could act as his translator and advisor. Another one of his friends (who prefers to remain nameless), is a boy-faced little man who was once a member of the Dandulpalya Gang, a murderous South Indian version of the Manson family. Their group was once known for, among more brutal crimes like the slaughter of the elderly, and according to local crime reporters, consuming donkey’s blood on the night of the full moon.

And despite the seeming volatility of such a social circle, the group walks around the contained death-row facility unpinned and unshackled. Their camaraderie seems to be one more based upon commiseration than on conspiracy. “Every night I go to bed crying,” Mr. Reddy told me. “I hate this awful place.” One could justly argue that Mr. Reddy, who ruined the lives of potentially scores of innocent women during his fetishistic crime spree, deserves very much to hate his surroundings. And despite the fact that he steadfastly denies his crimes, it might be a fair assessment, if it didn’t seem that his surroundings were more a symbol of an unintended institutional failure, or, at the very least, the unspoken compromise of a tentative Indian justice system.

The appeals process for death row criminals here flows upwards from the local courts all the way to desk of the President, or in some cases, the Governor of the local state. The road to a final decision takes decades to reach. So the hundreds of death row inmates in India can sometimes remain there, lingering indefinitely, until a death by natural causes occurs.

Reena Mary George is a Ph.D fellow at the University of Vienna who, during her research, also visited Belgaum Central Prison on behalf of a program called “Empowerment of Human Rights.” Ms. George believes that this purgatorial environment can breed close relationships among cellmates.

“The prisoners on death row with whom I have interacted have all been very cordial towards each other. They have often told me [things like], ‘we are in a situation where we do not know if we [will] live or die, we are away from our families and society. Hence we never fight. We comfort and provide space and respect,’” says Ms. George. Her observations also hint to the possibility that something like the lawyerly relationship between Ibrahim and Umesh Reddy might not be all that uncommon.

“[The prisoners] are united in their demanding of rights. Also, illiterate prisoners are taught by [those who can read]. Again, they help one another by writing letters or appeals for the ones who do not know how to read or write,” she says.

Although there has been ample consideration for such tactics as lethal injection, hanging is presently the only means by which Indian prisoners can presently be put to death. Hangmen remain on government payroll but they are seldom, if ever, called to work. Over the past two decades, only one execution has been carried out in India.

A movement to abolish the death penalty has yet to form in any substantial organizational sense here in India, but with 26/11 Pakistani attacker Ajmal Kasab indefinitely awaiting the results of his own appeal, more attention has been focused on the problematic system.

But for the likes of Suresh, who at age 6, walked into his house to find his mother tied to the floor and choked with multi-colored saris, soaking in blood from lacerating wounds suffered to the genital region, the wait for a final resolution often feels excruciating. “[Reddy] might say he is sad, but he is a liar,” Suresh, who only goes by one name, told me in an interview. “Don’t believe anything he says.” Suresh, now living with foster parents, is a happy 20 year-old man with a positive attitude. When asked whether he wants to see Reddy be hanged, however, the young man becomes stern and grim. He minces no words. “I want him to die,” he told me.

The Supreme Court upheld Mr. Reddy’s conviction in March of last year. Now his appeal sits with the President. How long it will remain there is anyone’s guess. But without any substantial outcry for institutional reforms, the wait for Suresh, and murderer of his mother, goes on.

Michael Edison Hayden is an American journalist, playwright, and screenwriter currently living in Mumbai. You can follow India Real Time on Twitter @indiarealtime. 

Source: Wall Street Journal http://blogs.wsj.com/indiarealtime/2012/02/21/the-great-wait-indias-death-row-prisons/?mod=google_news_blog [accessed on 23rd Feb 2012]