NEW DELHI: The Supreme Court on Friday censured the apex human rights body for interfering in the judicial sentencing system by recommending to the Assam governor to commute the capital punishment awarded to a murderer to life imprisonment. On the recommendation of the National Human Rights Commission, the governor had commuted the death sentence of one Rajnath Chauhan aka Ramdeo Chauhan to life imprisonment. This decision was challenged in the SC by the victim's family.
A Bench comprising Justices Arijit Pasayat and A K Ganguly reversed the governor's order and asked him to reconsider his decision in the light of an earlier judgment of the apex court relating to exercise of the constitutional power on clemency.
The Bench asked a basic question to NHRC -- "Who has violated the human rights of Chauhan?" Terming the human rights body's response, "when any action violated the human rights, there can be violation of the human rights", as evasive, the Bench said such a situation was not conceivable since the cause of the alleged violation of the human rights was the SC's judgment awarding him death penalty.
Terming the recommendation of NHRC as "without sanction of law", the Bench said the proceedings initiated by the apex human rights body were not in line with the procedure prescribed in the NHRC Act. "That being so, the recommendations, if any, by the NHRC are non est," it said.
"The State of Assam has indicated that not only the recommendations of the NHRC but several other aspects have been taken note of. But, the order directing commutation does not indicate any reason. This is contrary to what has been stated by the apex court," said Justice Pasayat, writing the judgment for the Bench.
"We, therefore, set aside the order of commutation of death sentence to life imprisonment and direct reconsideration of the application filed by Chauhan for commutation of sentence," the Bench said.
(Source: TIMES OF INDIA 9 May 2009, 0201 hrs IST, Dhananjay Mahapatra, TNN)
Thursday, May 28, 2009
Wednesday, May 27, 2009
Landmark Supreme Court case
The Supreme Court case of Santosh Bariyar v State of Maharashtra was decided on 13 May 2009 in a judgment delivered by Justice S.B Sinha. The case is a landmark decision by the Supreme Court which places strict limitations on the circumstances in which a death sentence may be handed down.
The Supreme Court revisits the Bachan Singh judgment and finds that Bachan Singh requires a mandatory pre-sentence hearing stage in cases where the death penalty may be given. At the pre-sentence hearing evidence on sentencing must be adduced. This evidence must relate not only to the crime, but also the criminal, including his or her socio-economic background. This marks a significant restriction on the sentencing powers of the courts in death penalty cases. In order for a death sentence to be awarded the prosecution must show that the alternative option of life imprisonment is foreclosed. In practice this means that the prosecution must show that the rehabilitation of the defendant is impossible.
Some excerpts of the Santosh Bariyar judgment are set out below:
The Supreme Court highlighted the importance of individualised sentencing in death penalty cases. It then went on to extend the ‘rarest of the rare’ doctrine to the sentencing stage of a death penalty case. The Court emphasized the importance of examining all the evidence in the case at the sentencing stage of the case.
The Court observed that:
“…what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender… Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence”.
One such circumstance is the probability that the accused can be reformed and rehabilitated. The Court, interpreting Bachan Singh noted that:
“Bachan Singh laid down a fundamental threshold in the following terms:
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”
The Court went on to observe that:
“An analytical reading of this formulation would reveal it to be an authoritative negative precept. “Rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of “when the alternative option is unquestionably foreclosed”. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:
that the case belongs to the rarest of rare category;
and the alternative option of life imprisonment will just not suffice in the facts of the case”
The Court then stated that the rarest of rare dictum entrenches the policy that life imprisonment is the rule and death punishment is an exception and that the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.
“The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception”.
The Supreme Court examined a range of cases in which the death penalty had been awarded and a number of cases in which defendants convicted of murder received life sentences and noted the lack of uniformity in sentencing:
“It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle”.
The full text of the judgment is available at: http://docs.google.com/Doc?id=dg5pxzvr_52c2kcrqdp
The Supreme Court revisits the Bachan Singh judgment and finds that Bachan Singh requires a mandatory pre-sentence hearing stage in cases where the death penalty may be given. At the pre-sentence hearing evidence on sentencing must be adduced. This evidence must relate not only to the crime, but also the criminal, including his or her socio-economic background. This marks a significant restriction on the sentencing powers of the courts in death penalty cases. In order for a death sentence to be awarded the prosecution must show that the alternative option of life imprisonment is foreclosed. In practice this means that the prosecution must show that the rehabilitation of the defendant is impossible.
Some excerpts of the Santosh Bariyar judgment are set out below:
The Supreme Court highlighted the importance of individualised sentencing in death penalty cases. It then went on to extend the ‘rarest of the rare’ doctrine to the sentencing stage of a death penalty case. The Court emphasized the importance of examining all the evidence in the case at the sentencing stage of the case.
The Court observed that:
“…what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender… Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence”.
One such circumstance is the probability that the accused can be reformed and rehabilitated. The Court, interpreting Bachan Singh noted that:
“Bachan Singh laid down a fundamental threshold in the following terms:
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”
The Court went on to observe that:
“An analytical reading of this formulation would reveal it to be an authoritative negative precept. “Rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of “when the alternative option is unquestionably foreclosed”. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:
that the case belongs to the rarest of rare category;
and the alternative option of life imprisonment will just not suffice in the facts of the case”
The Court then stated that the rarest of rare dictum entrenches the policy that life imprisonment is the rule and death punishment is an exception and that the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.
“The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception”.
The Supreme Court examined a range of cases in which the death penalty had been awarded and a number of cases in which defendants convicted of murder received life sentences and noted the lack of uniformity in sentencing:
“It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle”.
The full text of the judgment is available at: http://docs.google.com/Doc?id=dg5pxzvr_52c2kcrqdp
Monday, May 25, 2009
Article by Death row inmate
This a piece written by yet another inmate on death row...We seriously hope that the system changes
Tears of Blood written by Death row inmate
This is an article written by Santosh Bariyar who was on death row. Very recently his death sentence was commuted to life imprisonment by the Supreme Court.
(Translation of Hindi)
To hang a person to death after death sentence is given and to wait for the punishment to occur are two different things. If we are given death sentence immediately then all the complaints, sadness are gone in a while, even the family cries for some time and then get back to normal life.
But waiting for this sentence for a long period is a sad thing. We can feel the noose around our neck all the while. Sometimes we are also hopeful that we will be able to live life. But there are also times when my whole body shivers when I think of about being hanged. After all what can we do? We have to live life smiling or by crying… atleast for the family we have to smile.
More than us it is our family that goes through this mental agony. They must be thinking day and night when our child will be freed from this trap. Keeping the small child in mind, they make good food during festivals but neither my parents nor my wife can eat a morsel of it. How do they face the neighbours and society everyday? They all must be thinking that, “Their son or her husband must be a ruthless criminal or else why would the State give him death penalty?” our family must be listening to all the taunts of the society and must be crying for us day and night. Thinking about our family my heart cries out tears of blood…but what can we do? We cannot do anything afterall…
We have placed all these sorrows in our hearts and have made them the strength to move on ahead with life. We also have tiny hope that someday our country or the leaders of our country will also take into consideration sinners like us. We will be fortunate if one day we are allowed to return to the society?
Shinde Brothers Death penalty
These are the news reports that appeared in the local Marathi newspaper at Aurangabad (Bhokardan) on 1st May 2009. These reports state that the Supreme Court has confirmed the death sentence of Ankush Maruthi Shinde, Raja Appa Shinde and Raju Mhosu Shinde. This report also mentions the details of the crime.
The other three brothers (Ambadas Lakshman Shinde, Bapu Appa Shinde and Surya aka Suresh Nagu Shinde)were given life sentence however, their life sentence was converted to a death sentence at the Supreme Court. The Judges for this hearing was Justice Dr. Arijith Pasayath and Justice A.K.Mangoki
Thursday, May 21, 2009
Research studies
Death Penalty: A Human Rights Perspective
By: Reena Mary George
Guided by: Retired Justice Hosbet Suresh
Considering that the use of death penalty in India is a threat to fundamental human rights, the topic of this study, “Death Penalty: A Human Rights Perspective” is crucial. The main objectives was to study the impact of death penalty on the social, mental, and physical being of the inmate and to study the perception of opinion leaders on death penalty with reference to human rights. The study also sought to tackle the following questions: What are the living conditions of the death penalty inmates? In what ways does the current operation of death penalty in India conflicts with human rights? What are the alternatives to death penalty? What way can the study give them an opportunity to speak about their lives; their hardships as a death row inmate?
The inmates were contacted after seeking permission from the Director Inspector General. Data from the inmates was collected through prison visits. This study used a case study method. The study includes incerpts by the death row inmates themselves. It also captures the journey of the researcher in an Indian Prison Setting and the opposition by State to carry this study. The findings show that their family, their mental capacities and their physical health have been impacted in a very negative way. It further reveals the living conditions of prisoners in solitary confinement, incidents of torture to extract confession and the death row phenomenon.
It concludes with certain questions raised by the death row inmates. The recommendation is to abolish death penalty however in the interim period; there are certain facilities that the inmates should receive. It spells out that the State should be held guilty of killing people in their custody. India needs to recognise that we have a very bad standing in the world if we treat our fellow beings by hanging them and killing them in the most degrading, humiliating and cruel way. If India has pledged for a larger cause of humanity, why does it not keep her promise? Why should India wait for the rest of the world to shame us into abolishing death penalty?
By: Reena Mary George
Guided by: Retired Justice Hosbet Suresh
Considering that the use of death penalty in India is a threat to fundamental human rights, the topic of this study, “Death Penalty: A Human Rights Perspective” is crucial. The main objectives was to study the impact of death penalty on the social, mental, and physical being of the inmate and to study the perception of opinion leaders on death penalty with reference to human rights. The study also sought to tackle the following questions: What are the living conditions of the death penalty inmates? In what ways does the current operation of death penalty in India conflicts with human rights? What are the alternatives to death penalty? What way can the study give them an opportunity to speak about their lives; their hardships as a death row inmate?
The inmates were contacted after seeking permission from the Director Inspector General. Data from the inmates was collected through prison visits. This study used a case study method. The study includes incerpts by the death row inmates themselves. It also captures the journey of the researcher in an Indian Prison Setting and the opposition by State to carry this study. The findings show that their family, their mental capacities and their physical health have been impacted in a very negative way. It further reveals the living conditions of prisoners in solitary confinement, incidents of torture to extract confession and the death row phenomenon.
It concludes with certain questions raised by the death row inmates. The recommendation is to abolish death penalty however in the interim period; there are certain facilities that the inmates should receive. It spells out that the State should be held guilty of killing people in their custody. India needs to recognise that we have a very bad standing in the world if we treat our fellow beings by hanging them and killing them in the most degrading, humiliating and cruel way. If India has pledged for a larger cause of humanity, why does it not keep her promise? Why should India wait for the rest of the world to shame us into abolishing death penalty?
Wednesday, May 20, 2009
Supreme Court questions deterrent value of death penalty
The Supreme Court on Friday reduced the death sentence handed to anaccused in the 2001 abduction and murder case of national tennis champion S Kartikraj, to life imprisonment, and raised questions about the efficacy of capital punishment. The tennis champ was abducted in Pune by four accused, one of whom, Kumar Gaurav, turned approver. They demanded a ransom of Rs 7 lakh. The accused, who were Kartikraj's room-mates in college, lured him to a particular place on the pretext of giving him a party. When he reached there, they kidnapped him, tortured him for 2 hours and killed him on August 8, 2001. They cut his body into pieces, stuffed them in plastic bags and disposed the bags at different places. A Pune court sentenced Santosh Bariyar to death, and handed life imprisonment terms to Sanjeev and Santosh Roy. In2005, the Bombay High Court upheld the Pune court's order. In the SC, defence lawyers pointed out that neither the trial court nor the High Court had given reasons, which is required under the law, for finding Bariyar's case fit for the extreme penalty of death and handing a lesser punishment to his two friends, who played an equally evil role in the murder.
Holding that life imprisonment is a rule while death sentence is an exception, a bench of Justices SB Sinha and Cyriac Joseph said though the manner and method of disposal of Kartikraj's body was "abhorrent and goes a long way in making the present case a most foul and despicable case of murder" but mere mode of disposal of a dead body may not by itself be made the ground for inclusion of a case in the 'rarest of rare' category for imposing a death sentence. There are other factors to be considered before handing out the capital sentence, the judges held. The apex court cited another judgment dealing with one Ravindra Trimbak Chouthmal from Maharashtra who had killed his wife over dowry. Chouthmal had severed his wife's head and cut her body into 9 pieces and disposed them. The court then expressed doubts over the efficacy of the deterrent effect of capital punishment and commuted the death sentence to one of rigorous imprisonment for life. In the absence of any significant empirical attention to deterrence and severity of the extreme penalty by Indian criminologists, the judgment stated, "We cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right to life and liberty through the imposition of the death penalty." It added, "The goal of crime reduction can be achieved by better police and prosecution service to the same or at least to a great extent than bythe imposition of the death penalty."
(Source: DNA India, 16 May 2009)
Holding that life imprisonment is a rule while death sentence is an exception, a bench of Justices SB Sinha and Cyriac Joseph said though the manner and method of disposal of Kartikraj's body was "abhorrent and goes a long way in making the present case a most foul and despicable case of murder" but mere mode of disposal of a dead body may not by itself be made the ground for inclusion of a case in the 'rarest of rare' category for imposing a death sentence. There are other factors to be considered before handing out the capital sentence, the judges held. The apex court cited another judgment dealing with one Ravindra Trimbak Chouthmal from Maharashtra who had killed his wife over dowry. Chouthmal had severed his wife's head and cut her body into 9 pieces and disposed them. The court then expressed doubts over the efficacy of the deterrent effect of capital punishment and commuted the death sentence to one of rigorous imprisonment for life. In the absence of any significant empirical attention to deterrence and severity of the extreme penalty by Indian criminologists, the judgment stated, "We cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right to life and liberty through the imposition of the death penalty." It added, "The goal of crime reduction can be achieved by better police and prosecution service to the same or at least to a great extent than bythe imposition of the death penalty."
(Source: DNA India, 16 May 2009)
Subscribe to:
Posts (Atom)