Abolish Death Penalty India: CJI Dattu gets yet another chance at Surender Koli death penalty in UP appeal vs Allahabad HC commutation

Tuesday, December 18, 2018

CJI Dattu gets yet another chance at Surender Koli death penalty in UP appeal vs Allahabad HC commutation

By IANS Tuesday, 14 July 2015 00:20 Bar, Bench & Litigation

The Supreme Court on Monday issued notice to Nithari killings’ convict Surender Koli on an Uttar Pradesh government plea seeking restoration of death sentence in Rimpa Haldar case - one of the 14 cases of rape and killings in the village in Noida bordering Delhi. A bench of Chief Justice HL Dattu, Justice Arun Mishra and Justice Amitava Roy issued notice to Koli and others on the state government plea challenging an Allahabad high court verdict, handed down by chief justice DY Chandrachud, commuting his death sentence to life imprisonment in Rimpa Haldar case on the grounds of delay in deciding his mercy petition by the president.

Justice H.L. Dattu

The Uttar Pradesh government contended that the offences committed by Koli were heinous in the extreme. A bench of Chief Justice Dattu, Justice Anil R Dave and Justice SA Bobde, had on October 28, while rejecting Koli’s plea seeking recall of the apex court verdict upholding his death sentence in Rimpa Haldar case, said that “we are fully satisfied that this court has not committed any error that may persuade us to review the order” upholding his death sentence. Incidentally this was the first case of the open court hearing by a bench of three judges of review petition seeking revisiting of the verdict upholding the death sentence.

The apex court had on July 24 last year rejected Koli’s plea seeking the recall of its February 15, 2011 order upholding his death sentence in one of the 14 cases of rape and killing being faced by him. However, the court again heard his plea following a September 2 constitution bench decision allowing an open court hearing of the review petition by a bench of three judges. The constitution bench had said: “It (the decision of open court hearing of review petitions) will also apply where a review petition is already dismissed but the death sentence is not executed so far. In such cases, the petitioners can apply for the reopening of their review petition within one month from the date of this judgment.”

The execution of Koli’s death sentence that was to take place on September 8, 2014, was stayed hours before in a post mid-night hearing. Subsequently it was further stayed till October 29 by the court on September 12 as it decided to hold the open court hearing on October 28. The bench of (then) Justice Dattu and Justice Dave on July 24 had rejected the review plea holding that it was moved long after his death sentence was upheld by the apex court. President Pranab Mukherjee in July 2014 had also rejected Koli’s mercy plea. The Nithari killings came to light after the horrific discovery in December 2009 of body parts in a drain behind businessman MS Pandher’s bungalow and found to be of the 19 young women and children from Nithari village allegedly raped and killed by Koli, who served Pandher, in the bungalow.

Source: https://www.legallyindia.com/Bar-Bench-Litigation/cji-dattu-gets-yet-another-chance-at-surender-koli-death-penalty-in-up-appeal-vs-allahabad-hc-commutation (Accessed on 18 December 2018)

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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

Tuesday, December 18, 2018

CJI Dattu gets yet another chance at Surender Koli death penalty in UP appeal vs Allahabad HC commutation

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