Abolish Death Penalty India: Hope for death-row convict

Friday, February 6, 2015

Hope for death-row convict

Thursday , November 13 , 2014 | OUR LEGAL CORRESPONDENT

New Delhi, Nov. 12: The Supreme Court today decided to examine if the sentence of a death-row convict who killed five persons could be commuted to life after he claimed he was only 18 years and two months old at the time of the November 2004 murders. Sonu Sardar and four others had entered the home of a Chhattisgarh scrap-dealer, snatched Rs 1.75 lakh in cash and killed him, his wife, two small children and their driver. A 10-year-old daughter fled to a neighbour’s house and a three-year-old boy and six-month-old girl escaped unharmed.

The apex court’s decision is bound to raise eyebrows as there has been a clamour — since the December 2012 gang rape of a paramedical student — to try under the adult criminal law minors above 16 who are accused of heinous crimes. All accused aged below 18 are now tried under the Juvenile Justice Act, which provides for a maximum punishment of three years in a reformation home.

A bench of Justices A.R. Dave, J. Chelameshwar and U.U. Lalit said apart from considering Sardar’s claim of being young at the time of the crime, there was need to examine if the fatal blows to the victims were delivered only by him or the others as well. It then asked the state to file its response to this. On November 26, 2004, the five had entered the house of Shamim Akhtar in Cher village in Chhattisgarh’s Baikunthpur district and killed him, wife Ruksana Bibi, son Yakub (8), daughter Kumari Rana (4) and driver Asghar Ali.

Orphaned were three other children: daughter Shabana Khatun, who fled to a neighbour’s house, and Yakut and Asna, who were not harmed. Only Sardar has been convicted of murder as the whereabouts of the three others are not known till date. The fifth offender was tried as a juvenile and freed after a 3-year reformation period. In 2008, the sessions court at Bilaspur sentenced Sardar to death. In 2010, Chhattisgarh High Court confirmed the order.

Sardar then moved the top court, which dismissed his appeal in February 2012. The President rejected his mercy plea in May this year. During the review petition hearing today, senior counsel Raju Ramachandran said Sardar was only a little over 18 at the time of the murders. Moreover, his conviction was based on circumstantial evidence and the testimony of a 10-year-old child witness, so his sentence should be commuted to a life term. However, the state’s counsel, Atul Jha, opposed any leniency, saying the murders were committed in the most brutal manner and three children had been orphaned by the attack.

Jha said the trial court had rightly relied on the following factors for awarding death penalty:

The crime was pre-meditated;
The crime has struck fear and terror in the public mind;
The victims were helpless and defenceless, including two minors;
Even Asgar Ali, the driver who had dropped by for his food, was not spared;
Sardar took advantage of earlier business relations with Shamim, made a friendly entry and committed the murders;
The intention was to kill all members of the family, although surprisingly a six-month-old baby and a three-year-old child remained alive;
The five murders were brutal, grotesque, diabolical, revolting and dastardly, which indicated the criminality of the perpetrators of the crime;
No physical or financial harm appears to have been caused by the deceased to the accused.

The bench fixed January 20 as date of the next hearing.

Source: http://www.telegraphindia.com/1141113/jsp/nation/story_19034041.jsp#.VNTXd_nF-Qo [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

Hope for death-row convict

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