Abolish Death Penalty India: India: Death in the name of conscience

Thursday, May 28, 2015

India: Death in the name of conscience

ACHR PRESS RELEASE

"India: Death in the name of conscience” released today examines the imposition of death penalty to convicts in the name of 'collective conscience of the society' which is often interpreted as the ‘judicial conscience’. The report specifically examines (i) manufacturing of 'conscience' to justify death sentence, (ii) the use of 'conscience' in the judgements imposing death penalty which have already been declared as per incuriam by the Supreme Court, (iii) how 'conscience', “which varies from judge to judge depending upon his attitudes and approaches, his predilections and prejudices, his habits of mind and thought and in short all that goes with the expression social philosophy”, plays out as to whether an accused charged with an offence punishable with death shall live or die, and (iv) inconsitency of the Indian judiciary while considering the factors and circumstances to determine between life and death in a capital punishment case.

In the post Bachan Singh judgement which upheld constitutional validity of death penalty in 1980, there has not been a single judgement including those declared as per incuriam in which ‘collective conscience’ of the society and/or ‘judicial conscience’ have not been used to justify imposition of death penalty.

The reliance on ‘conscience’ for imposition of death penalty is deeply flawed, fraught with malafides at every stage, and is often manufactured through scapegoating of the dispensable i.e. the poor, socially disadvantaged and those accused of terror offences. They are often unable to defend themselves in all stages, most notably at the stage of the trial held under intense local social pressure, media trial and hostile environment. For terror-related offences, it will not be an understatement to assert that a clear precedent has been set in India wherein justice system is tweaked by the desire for retribution in order to satisfy the socalled ‘collective conscience’ rather than meeting the basic requirements of justice. In addition, some crimes such as the ones against women and children are so gruesome and become politically significant in the light of massive public outrage that it almost becomes indispensable for the State/prosecution to find the guilty, even if it means tweaking justice, to assuage public anger. That the public anger, as shown against the Nithari killings and Nirbhaya gang rape and murder case, is equally directed against the failure of the State and the system as much against the crimes and the criminals, is often forgotten.

The report examines 48 judgements on death penalty pronounced by two distinguished former judges of the Supreme Court viz. Justice M B Shah and Justice Arijit Pasayat, who are currently serving respectively as Chairperson and Vice Chairperson of the Special Investigation Team on Black Money appointed by the Supreme Court of India, to illustrate how ‘conscience’ of individual judges play out the ‘collective conscience’ and/or ‘judicial conscience’.

Out of the 33 death penalty cases adjudicated by Justice Arijit Pasayat examined by Asian Centre for Human Rights (ACHR), Justice Pasayat (i) confirmed death sentence in 15 cases including 4 cases in which lesser sentences were enhanced to death sentence and two cases in which acquittal by the High Courts were turned to death sentence, (ii) upheld acquittal in 8 cases, (iii) commuted death sentence in 7 cases and (iv) remitted 3 cases back to the High Courts to once again decide on quantum of sentence as death penalty had not been imposed by the High Courts. It is pertinent to mention that out of the 16 cases in which death penalty were confirmed by Justice Pasayat, 5 cases have since been declared as per incuriam by the Supreme Court.

On the other hand, Justice M B Shah did not confirm death sentence in any of the 15 cases of death penalty adjudicated by him. He rather commuted death sentence in 12 cases, did not enhance life imprisonment into death penalty in any case, did not alter acquittal by the High Courts into death penalty in any case, did not remit back any case to the High Courts on the quantum of sentence and did not deliver a single judgement which was declared as per incuriam. He acquitted convicts in three cases out of which he passed dissenting judgements against imposition of death penalty in two cases.

Out of these 48 cases, three cases i.e. Devender Pal Singh Bhullar v. State of National Capital Territory of Delhi and Anr, Krishna Mochi and Ors. v. State of Bihar etc and Lehna v. State of Haryana, the Supreme Court benches comprised Justice A Pasayat and Justice M B Shah along with Justice B N Agrawal. In Devender Pal Singh Bhullar and Krishna Mochi & Ors, the majority view comprising Justice Pasayat and Justice Agrawal confirmed death sentence on all the accused in both the cases. Justice Shah, on the other hand, acquitted Bhullar and altered the death sentence on Krishna Mochi, Nanhe Lal Mochi and Bir Kuer Paswan to life imprisonment and further acquitted Dharmendra Singh. However, there was no disagreement between Justice Shah and Justice Pasayat in commutation of death sentence in Lehna v. State of Haryana.

Though consideration of the aggravating circumstances relating to the crime and mitigating circumstances relating to the criminal as enunciated in BachanSingh judgement cannot be deduced to a zero sum game, the inconsistency in consideration of these circumstances by the judiciary is all pervasive. These inconsistencies stand exposed on perusal and analysis of various judgements of the Supreme Court, inter alia, (i) relating to consideration of convict’s young age for commutation of death penalty, (ii) the benefit of possible reformation or rehabilitation as a ground for commutation of death penalty, (iii) acquittal or life sentence awarded by the High Courts as a ground for commutation, and (iv) circumstantial evidence as a mitigating factor for commutation of death sentence.

Arbitrariness was the ground for declaring death penalty provided under Section 277 of the Criminal Procedure Act of South Africa as unconstitutional by the Constitutional Court of South Africa in the case of State v. Makwanyano & Anr. The situation and factors that were taken into consideration by the South African Constitutional Court for determining arbitrariness is not dissimilar to India – the mirror reflection is possibly worse in India. If death penalty can be declared unconstitutional on the ground of arbitrariness in South Africa, there is no reason why it should be constitutional in India.[Ends]

Source: http://www.achrweb.org/press/2015/IND03-2015.html [last accessed 28.05.2015]

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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

Thursday, May 28, 2015

India: Death in the name of conscience

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