Abolish Death Penalty India: Government opposes Red Fort convict’s plea against death sentence

Friday, February 6, 2015

Government opposes Red Fort convict’s plea against death sentence

Wed, Jul 16, 2014

New Delhi: The central government on Tuesday opposed the December 22, 2000 Red Fort terror attack convict Mohamed Arif’s plea that his death sentence should not be carried out since he has already undergone life sentence of nearly 14 years and could not be punished twice for the same offence. Its stand came as the Supreme Court reserved its order on a batch of petitions that contended that an appeal in a death sentence case be heard by five judges bench and review of the court’s order (on the appeal) too be heard in an open court.

The convict (Arif’s) availed the judicial remedies by filing appeals, and the time spent during the disposal of those appeals could not be counted as if he had undergone the sentence, Solicitor General Ranjit Kumar told the constitution bench of Chief Justice R.M.Lodha, Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice A.K.Sikri and Justice Rohinton Fali Nariman. “Arif has taken a chance of court procedure. Mere pendency of the matter can’t treated as if he undergoing sentence,” the SG told the court counting the dates and years when he moved the high court and the apex court including filing a review and then curative petition.

In a death case if anything is pending then death sentence would not be carried out

“In a death case if anything is pending then death sentence would not be carried out,” Ranjit Kumar said. Earlier in the course of the hearing, the SG, opposing the open court hearing of the review petition, told the court that it was different from an appeal against the order of the lower court and thus the scope of hearing the two was also different. At present the review petitions are decided by the judges in their chambers through circulations.

Ranjit Kumar told the court that a review plea could only be taken up in the open court for oral hearing provided some new issues or points have been raised which were not before any of the courts in the earlier hearings of the case. He said that plea for an oral hearing of the review petition in the open court could not be camouflaged as an appeal against the apex court’s earlier order in the matter. At this, the court said that in deciding the death sentence cases, the court has to balance between the aggravating and mitigating circumstances and in striking that balance, there can be an error – which can be pointed out in the course of the open hearing of the review petition.

Chief Justice Lodha said that the error may be one in million cases but even that one case is important in advancing the course of justice as it involves a human life – the loss of which is irreversible. The court also suggesting framing of guidelines for hearing the review petitions in death sentence cases in open court. “One way could be framing of the guidelines under which the matter could be sought to be heard in open court in a review petition,” the court said trying to find some common ground. Ranjit Kumar however said that these guidelines could not be strait-jacketed and have to be applicable from case to case depending on their categories.

The court reserved its order on a batch of petitions including Lashkar-e-Taiba militant Arif alias Ashfaq, 1993 Mumbai bomb blast death row convict Yakub Abdul Razak Memon and Nedunchezhiyan, Ravindran and C. Muniappan, all convicted and sentenced for setting on fire a bus carrying students of Tamil Nadu Agricultural University in February 2000 to protest the sentencing of Chief Minister Jayalalithaa.

Source: http://www.indileak.com/government-opposes-red-fort-convicts-plea-against-death-sentence/ [last accessed 06.02.2015]

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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

Abolish Death Penalty India

Friday, February 6, 2015

Government opposes Red Fort convict’s plea against death sentence

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