Abolish Death Penalty India: High court stays execution after President delays mercy plea call

Friday, February 6, 2015

High court stays execution after President delays mercy plea call

Dhananjay Mahapatra, TNN | Aug 9, 2014, 06.27AM IST NEW DELHI: The Gauhati high court has stayed the execution of condemned prisoner Holiram Bordoloi on his petition seeking commutation of death penalty to life imprisonment on the ground that there had been inordinate and inexplicable delay on the President's part to decide on his mercy plea. Appearing for Bordoloi, senior advocate AK Bhattacharyya relied on the January 21 judgment of the apex court, which ruled that in cases where the President had taken "inordinate and inexplicably" long time to decide a mercy plea, then on its rejection the condemned prisoner had a right to move the court on ground of delay to seek commutation of death penalty to life imprisonment. Bordoloi was convicted by a Morigaon trial court on March 3, 2004 for leading an armed group to a hut and burning it down along with a scared family which was cowering inside. A six-year-old boy escaped the fire and came out running. But, Bordoloi had flung him inside the burning hut. Another person was dragged out and cut to pieces. The Supreme Court had upheld Bordoloi's conviction and death sentence on April 8, 2005. It had said: "There was no spark of any kindness or compassion and his mind was brutal and the entire incident would have certainly shocked the collective conscience of the community. We are unable to find any mitigating circumstance to refrain from imposing the death penalty on the appellant Holiram Bordoloi." Bordoloi had filed a mercy petition and in his petition before the high court claimed that the President decided it after 9 years and 3 months. A bench of Justices C R Sharma and M R Pathak on Tuesday said: "The point raised in this writ petition is that there was inordinate delay in disposing the mercy petition and that no reason has been given for such delay. According to the petitioner, in view of the decision given by the apex court, the death sentence cannot be executed at this stage." The bench issued notice to the Centre and sought response by September 5. It stayed the execution till further orders and ordered the Registry to communicate the order to Nagaon Special Jail, where Bordoloi is lodged at present. On January 21, the Supreme Court in an unprecedented order commuted the death penalties of 15 convicts — each found guilty in multiple brutal murders — to life term on the ground that the President had taken inordinately long time to reject their mercy pleas. The court came to the rescue of the 15, some of whom had been served with execution warrants, on two grounds — inordinate, undue and unexplained delay in disposal of their mercy pleas and non-consideration of their mental illness. The court had also fixed a mandatory 14-day gap between rejection of a mercy petition and the hanging to allow the convict to prepare for death and meet his family for the last time. A bench of then Chief Justice P Sathasivam and justices Ranjan Gogoi and Shiva Kirti Singh had said, "Keeping a convict in suspense while consideration of his mercy petition by the President for many years is an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death." Source: http://timesofindia.indiatimes.com/india/High-court-stays-execution-after-President-delays-mercy-plea-call/articleshow/39915430.cms [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

High court stays execution after President delays mercy plea call

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