Abolish Death Penalty India: New ray of hope for death row convicts, SC allows fresh plea for open court hearing

Friday, February 6, 2015

New ray of hope for death row convicts, SC allows fresh plea for open court hearing

Written by Utkarsh Anand | New Delhi | Posted: September 2, 2014 11:26 am | Updated: September 2, 2014 11:46 am Giving a fresh ray of hope for several death-row convicts, including 1993 Mumbai serial blasts case convict Yakub Abdul Razak Memon , the Supreme Court on Tuesday ruled that their review petitions against the verdict upholding the death sentence will now be heard by a three-judge bench in open court. A Constitution bench headed by Chief Justice R M Lodha said that all the death row convicts, whose review petitions have already been rejected but their sentence has not been executed, may file fresh petitions for an open court hearing of their review pleas within a month and they will be heard for at least half-an-hour. However, in the cases, where the curative petition has already been decided, the death row convict will not have this opportunity to avail the same. The constitution bench verdict came on a batch of petitions seeking that their plea for the recall of verdict upholding their death sentence should be heard in the open court by a three judges bench. As of now the review plea of death row convicts were being considered by the judges in their chambers through circulation. By its order, the court decided a batch of petitions, filed by eight death-row convicts, including Yakub Abdul Razak Memon, convicted in the 1993 Mumbai serial blasts case, and Red Fort Attack case convict Mohd Arif. While Arif’s curative petition has already been rejected, Memon has not exhausted this remedy. The court had in June stayed the execution of Memon, who is the brother of Ibrahim Memon, better known as Tiger Memon, the alleged mastermind and the prime accused who is absconding in the blast case. President Pranab Mukherjee had in April rejected the mercy petition of Memon and the decision was left to the Maharashtra government for fixing the execution date. Memon is lodged in the high-security ward of Nagpur jail. In March last year, the SC had confirmed the death sentence awarded to Memon, holding him guilty of being the “driving spirit” behind the blasts that killed 257 people, while commuting the death sentence awarded to 10 others to life imprisonment till their death. The court had said that Memon’s “commanding position and the crime of utmost gravity” warranted capital punishment. Memon then moved a clemency petition before the President in October last year. A chartered accountant by profession, Memon was arrested in 1994. Gangster Dawood Ibrahim is also an accused in the case. The government had recommended rejection of Memon’s mercy petition on the ground that it was an act of terrorism and did not qualify for pardon. While staying his execution, the court had tagged his plea with a petition by Lashkar-e-Toiba terrorist Mohd Arif alias Ashfaq, who was convicted in the 2000 Red Fort attack case, in which three people, including two Army personnel, were killed. Ashfaq’s petition was referred to the Constitution bench to decide if the review of death penalty cases warranted open court hearings. Others whose appeals against execution of death penalty have been decided include three convicts in the 2000 Dharampuri bus burning incident, a former police constable held guilty in a grotesque rape and murder case, and two other convicts in murder cases. These cases were decided along with the appeal by three AIADMK workers involved in burning to death three college girls in Tamil Nadu in 2000 after J Jayalalithaa’s conviction in a corruption case. The SC had in 2011 stayed execution of capital punishment upheld by it for convicts C Muniappan, Ravindran and Nedunchezhian. It had also stayed the execution of death sentence of former police constable Umesh Reddy, alias B A Umesh, who was convicted of the gruesome rape and murder of a widow in Bangalore in 1998. Sentenced to death for kidnapping a seven-year-old boy and murdering the child after his ransom demand of five lakhs was not met in 2009, Sundarrajan’s plea was also adjudicated in this bunch of petitions. Sonu Sardar was sentenced to death for killing five members of a family in Chhattisgarh in 2004 and his mercy petition was rejected by the President in April. He had also moved the SC, seeking stay on his execution and the court heard his case too. All those whose curative petitions have not been dismisses may move the court again. Source: http://indianexpress.com/article/india/india-others/new-ray-of-hope-for-death-row-convicts-sc-allows-fresh-plea-for-open-court-hearing/ [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

New ray of hope for death row convicts, SC allows fresh plea for open court hearing

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