Abolish Death Penalty India: Death-row convicts should be entitled to meet family, lawyers: SC

Tuesday, December 25, 2018

Death-row convicts should be entitled to meet family, lawyers: SC

By PTI |New Delhi |Updated: December 13, 2018 9:56:48 pm

A bench headed by Justice Madan B Lokur said this while dealing with an application which had said that prisoners sentenced to death by any court have a right to be treated at par with other convicted prisoners and should be provided all similar facilities as are provided to others in jail.

Justice Madan B Lokur

The Supreme Court Thursday said death-row convicts should be entitled to meet family members, lawyers and mental health professionals so that their rights are adequately protected at all stages. A bench headed by Justice Madan B Lokur said this while dealing with an application which had said that prisoners sentenced to death by any court have a right to be treated at par with other convicted prisoners and should be provided all similar facilities as are provided to others in jail. The application had also sought a direction that solitary confinement of death row convicts or their separate and cellular confinement be struck down as unconstitutional. The bench requested the Justice (retd) Amitava Roy committee, constituted by the apex court to look into aspects of jail reforms across India, to look into the issues raised in the application in “greater depth”.

The bench, which also comprised Justices S Abdul Nazeer and Deepak Gupta, observed that the issue as to when a convict should be considered as a “death row prisoner” must be dealt with in a “humanitarian and compassionate manner”. Referring to an earlier verdict of the apex court, the bench said the law laid down in this regard was quite clear that a prisoner under sentence of death can only mean a prisoner whose capital punishment has become final, conclusive and indefeasible and which cannot be annulled and voided by any judicial or constitutional procedure.

“In other words, a prisoner can be said to be a prisoner on death row when his sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then, such a prisoner cannot be said to be under a sentence of death in the context of Section 30 of the Prisons Act, 1894,” the bench noted in its order.

“In our opinion, the decisions of this court have quite clearly defined when a prisoner could be said to be on death row and have also taken care of the rights of prisoners on death row as well as those who are a security risk. No further elucidation is necessary,” the court said.

The bench said rights of prisoners, as enunciated by the apex court, should be available in all the states and union territory administrations and they must modify the prison manuals, regulations and rules accordingly. “With regard to the entitlement of a prisoner on death row to have meetings and interviews with his lawyers or members of his immediate family or even mental health professionals, we are of opinion that such meetings and interviews should be permitted,” the bench said. It referred to earlier verdicts delivered by the top court and noted that a death-row convict was entitled to move within the confines of prison like any other convict undergoing rigorous imprisonment.

“However, certain restrictions may be necessary for security reasons, but even then, it would be necessary to comply with natural justice provisions with an entitlement to file an appeal,” the bench noted in its order. On September 25, the apex court had constituted a three-member committee, headed by Justice (retd) Roy, to look into the aspect of jail reforms across India and make recommendations on aspects, including overcrowding in prisons. The court had said the committee would also comprise Inspector General of Police of Bureau of Police Research and Development and Director General (Prisons) of Delhi’s Tihar Jail. The court had passed the order while hearing a matter relating to inhuman conditions in 1,382 prisons across India.

It had earlier taken strong exception to overcrowd of jails across the country and said prisoners also have human rights and cannot be kept like “animals”. The court had earlier passed a slew of directions over unnatural deaths in jails and on prison reforms across India.

Source: https://indianexpress.com/article/india/death-row-convicts-should-be-entitled-to-meet-family-lawyers-sc-5492629/ (Accessed 25 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 25, 2018

Death-row convicts should be entitled to meet family, lawyers: SC

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