Abolish Death Penalty India: juvenile death penalty

Showing posts with label juvenile death penalty. Show all posts

Friday, February 6, 2015

Delhi Rape Victim’s Family Says Exemption of Death Penalty Weakens Juvenile Justice Bill

5:33 pm IST Aug 8, 2014 By SAURABH CHATURVEDI and ADITI MALHOTRA The parents of the young woman who was raped and murdered on a moving bus in India’s capital in 2012 applauded efforts by India’s new government to change the juvenile-justice law so that youthful offenders accused of serious crimes can be tried as adults. “Minors accused of such crimes should not go scot-free,” said the father of the 23-year-old victim in an interview with The Wall Street Journal on Friday. Under Indian laws meant to protect the identity of rape victims, he cannot be identified. A bill approved by India’s cabinet on Wednesday proposes that children between 16 and 18 years of age who are accused of crimes such as rape, murder and acid attack can be tried in adult courts. Under the legislation, teenage convicts could not be sentenced to death or life in prison. The father of the victim, who has in the past made repeated calls for the death penalty for all the convicted perpetrators in the rape and murder of his daughter, said exempting younger offenders from the death penalty was a mistake in the bill. “I am all for it (death penalty) to make the draft law even stronger,” he said. Juveniles who commit heinous crimes are “a burden on this world,” the victim’s father said. He said with a “stronger law” in place, he would “seek extension of the sentence of the juvenile” who was convicted in the rape of his daughter. A 17-year-old found by a juvenile court to have participated in the December 2012 Delhi gang rape and killing was sentenced to three years of confinement in a reformatory, the maximum punishment allowed under the current law. Four men convicted in the case were sentenced to death under a new law implemented in 2013 to strengthen penalties for crimes against women. A fifth alleged assailant died in jail during the trial. Authorities said he killed himself. His relatives alleged he was murdered. In 2000, India raised the age of majority for men to 18 from 16 in accordance with the United Nations Convention of the Rights of the Child. Public support for harsher punishment for minors has grown since the Delhi gang rape, but human-rights activists and child-welfare experts have criticized the government’s backing for the proposed changes. “Instead of hasty measures, the government should make a commitment to effective law enforcement and the more difficult and lengthy steps needed to reform the criminal justice system,” said Meenakshi Ganguly, the South Asia director of Human Rights Watch. The number of minors found culpable in rape cases in India went up from 1,149 in 2011 to 1,175 in 2012, according to the National Crime Records Bureau. “They [the cabinet] have recognized that the amendments are a necessity given the increase in the number of crimes committed by juveniles,” said the victim’s father. Follow Saurabh and Aditi on Twitter @journosaurabh @A4iti. Source: http://blogs.wsj.com/indiarealtime/2014/08/08/delhi-rape-victims-family-says-exemption-of-death-penalty-weakens-juvenile-justice-bill/ [last accessed 06.02.2015]

Tuesday, August 21, 2012

After six years on death row, spared for being a juvenile

Manoj Mitta, TNN | Aug 21, 2012, 02.59AM IST NEW DELHI: Capital punishment for a juvenile offender - that's inconceivable in law. Yet, after being on death row for six years, a dalit convicted in a multiple-murder-and-rape case has been found by a Maharashtra court to have been a juvenile at the time of the crime. The implication of this order passed last month is unprecedented: although his death sentence was confirmed by the Supreme Court in 2009, Ankush Maruti Shinde is entitled to be released at the earliest as the maximum penalty under the juvenile justice law for any crime is three years. Besides, the order passed on July 6 by an additional sessions judge of Nashik, R N Joshi, has rendered redundant Shinde's mercy petition pending before the President. The dramatic change in his fortunes is thanks to an application filed last year on his behalf by human rights advocate Vijay Hiremath seeking an inquiry into his age so that he could get the benefit of the juvenile justice law. If this age factor had not been taken into account before Shinde was tried and convicted along with five others, it conforms to the general pattern that people of lower castes and classes, for lack of proper legal representation, are more susceptible to arbitrariness in the award of death penalty. For, Shinde got the death sentence evidently because his counsels in the trial court, high court and Supreme Court had failed to point out the elementary but crucial detail that he was below 18 when he had participated in the massacre of five members of a family on June 5, 2003. It was only after he spent nine years in jail (first as an undertrial prisoner and then as a death row convict) has the injustice suffered by Shinde been redressed. And even this is because of the fortuitous circumstance of his cause being espoused by a human rights lawyer and his case going before a sessions judge who dared to get in the way of a sentence upheld by the apex court. In his 34-page order, Joshi declared that Shinde was a "juvenile in conflict with law" on the date of the crime as his age then was found to be 17 year, nine months and fifteen days. The basis of the declaration was eminently routine: the date of birth mentioned in the school admission register and school leaving certificate, which are accepted in law as conclusive proof of age. This means that instead of being sent to jail and tried along with co-accused before a regular court, Shinde's case should have been placed before a juvenile justice board and he should have been sent to a reformatory. In keeping with this strange background, Joshi directed that Shinde, who is "awaiting death sentence", be taken out of Nagpur's central prison and produced before Nashik's juvenile justice board. Since he has already been behind bars for thrice the maximum term he could have got under the juvenile justice law, the only thing that the board is expected to do now is to release him, with immediate effect. Source: Times of India Manoj Mitta, TNN | Aug 21, 2012, 02.59AM IST http://timesofindia.indiatimes.com/india/After-six-years-on-death-row-spared-for-being-a-juvenile/articleshow/15577973.cms [accessed 21st August 2012]

Monday, November 28, 2011

Minor's death penalty set aside

Holding that he was a minor at the time of commission of offence, the Madurai bench of the Madras high court on Friday set aside the death sentence imposed on a convict for raping and murdering a 10-year-old girl. The girl was murdered in 2006 at Jaihindpuram, Madurai.

Allowing the appeal of the convict, the bench comprising Justice M Jaichandren and Justice S Nagamuthu pronounced the conviction and sentence imposed on the appellant under all charges as set aside.

The case has been remitted back to the file of the Juvenile Justice Board, Madurai, for disposal in accordance with provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice Board, Madurai, has been directed to dispose of the case within four months.

V Selvam of Anupanadi was arrested for rape and murder of a 10-year-old girl at her residence in Jaihindpuram. According to the police, he was working with a garland seller at Jaihindpuram. When his boss went away, the boy went to the house of the garland seller, beat up the girl, raped and murdered her. Later, he hid her body in a cardboard box meant for TV sets and fled, on October 26.

When the police went after him, he surrendered before the village administrative officer and confessed to have committed the crime. The accused was then handed over to the police.

Selvam is the sole accused in the case. He stood charged for offences under sections 450, 376(2)(f), 377, 302 and 201 of the Indian Penal Code. By judgment on August 1, 2008, the trial court convicted him under sections 450, 376(2)(f), 377, 302 and 201 of the IPC.

For offence under section 302 of the IPC, he has been given the death sentence subject to confirmation by the high court. He also got awards ranging from imprisonment of 10 years to a life sentence under the other provisions. In 2008, Selvam challenged the convictions before the Madurai bench.

It was contended that as on the date of alleged commission of offence, the accused was a juvenile in conflict with law since his date of birth was 01.06.1989. Therefore, it was submitted that he was entitled to the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000, and so the entire trial before the lower court, which treated the appellant as an adult, stood vitiated.

On considering the said ground and after hearing both sides, a division bench directed the trial court to hold an appropriate inquiry in respect of the age of the accused as on the date of occurrence of offence and submit a report.

Accordingly, the additional sessions judge (mahila court), Madurai, submitted a report on February 22, 2010, reporting that the accused was not a juvenile in conflict with law as he was about 21 years of age at the time of commission of offence.

Again, the counsel for the petitioner contended that the inquiry was not conducted by the sessions judge in accordance with law. It was submitted that even the school certificate of the accused showing his date of birth was not considered, and instead, the opinion of the doctor alone was taken into account.

After hearing both sides, the division bench, by order on July 29, 2010, scrapped the report of the sessions judge and remitted the matter back to the additional sessions judge, Madurai, with a direction to conduct an inquiry in respect of the age of the accused as on date of commission of offence, and to submit a fresh report within four weeks.

Having considered all the above material, the sessions judge concluded that as on the date of commission of offence, i.e. October 22, 2006, the accused was aged 17 years, four months and 21 days, and thus he was only a juvenile.

In view of the specific provisions contained in the act and the law laid down by the Supreme Court in previous judgments, the Bench said, "We have no other option but to set aside the conviction and sentence imposed on the appellant under all charges and to remit the matter back to the file of the Juvenile Justice Board, Madurai, with a direction to the board to hold a necessary inquiry as per provisions of the act and dispose of the case in accordance with law, as the entire trial stands vitiated."

Source: http://articles.timesofindia.indiatimes.com/2011-11-26/madurai/30444689_1_madurai-bench-mahila-court-convict
accessed on 28th Nov 2011

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George