Abolish Death Penalty India: Death Row Inmates: Scaling Down Sentences (India)

Tuesday, December 25, 2018

Death Row Inmates: Scaling Down Sentences (India)

December 16, 2018

Recent court judgments have tended to take a more humane view of not just the issue of capital punishment but even issues relating to convicts waiting on death row

By Vipin Pubby in Chandigarh

Among the last judgments that Justice Kurien Joseph delivered before his retirement last month was one that commuted the death sentence of a murder accused to life imprisonment. In a minority judgment delivered on November 28, Justice Joseph noted that it was high time the imposition of death as a punishment, however heinous the crime, be reviewed. The two other judges on the bench agreed with him in commuting the sentence to life imprisonment, but differed on the issue of the constitutionality of capital punishment.

Public opinion in the country on the abolition of the death penalty remains sharply divided but some recent judgments of the Supreme Court and High Courts have tended to take a more humane view of not just the issue of capital punishment but even issues relating to convicts on death row. Courts are increasingly attempting to usher in reforms and are prodding the government to review some archaic laws dating back to the British era.

The Punjab Jail Manual, for instance, specifies that “every prisoner condemned to death is to be confined in a cell apart from all other prisoners, and is to be placed by day and by night under the charge of a special guard. No person can communicate with him without the authority of the Superintendent. The prisoner condemned to death is only permitted to occupy the courtyard of his cell for half an hour each morning and evening”. Taking cognisance of the provision, a division bench of the Punjab and Haryana High Court had earlier this month abolished the practice of keeping death row inmates in solitary confinement in Haryana jails. The High Court said that the rule was without authority of law and amounted to additional punishment. In its order, the Court called the provision “anarchic, cruel and insensitive”, reflective of “a colonial mindset”, and violative of Articles 20 (2) and 21 of the Constitution.

In a 111-page judgment, the Court said the practice “amounts to torture and is violative of a person’s basic human rights”. The bench comprising Justices Rajiv Sharma and Gurvinder Singh Gill also said the “convict shall not be segregated/isolated till the sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial process. The period to keep a convict sentenced to death in segregation/isolation should be for the shortest possible time, i.e. 2-3 days”. The order came as part of a judgment commuting the death sentence of three persons convicted by a Mahendergarh court for the rape and murder of a nine-year-old in 2014 to a mandatory 20-year term without remissions.

The court order for “abolishing” the rule is specific to the “practice” adopted by jail authorities in Haryana. However, the bench did not pass any order to remove the provision from the Punjab Jail Manual, which has been adopted by Haryana. Removal of the provision will require the Punjab government to make amendments to the Jail Manual, or the court, acting on a legal challenge, to quash the provision. The division bench passed the verdict in response to appeals filed by three convicts against the death sentence awarded to them and the murder reference sent by the trial court for confirmation by the High Court. The advocates representing them also pointed out that the convicts had been sent to solitary confinement immediately after being sentenced to death.

Last month, Justice Joseph along with Justices AM Khanwilkar and DY Chandrachud took up for review a case concerning capital punishment. The review petition related to a case wherein the special leave petition filed against the imposition of capital punishment was dismissed in limine by a bench of the Supreme Court in 2006. The bench had dismissed the case without hearing it. Under the norm, the court need not give any justification for not hearing a case as it is assumed that it has made up its mind before the start of hearings. The three-judge bench deciding to reopen and review the earlier decision of the Court in such a case was perhaps unprecedented. Earlier in 2014, a Supreme Court bench of then Chief Justice of India P Sathasivam and Justices RM Lodha, HL Dattu and Sudhansu Jyoti Mukhopadhaya, had commuted the death penalty of 1993 Delhi bomb blast convict Devender Pal Singh Bhullar to life imprisonment.

Justice Kurian Joseph

The bench said that because of the “unexplained/inordinate delay” of eight years in disposing of his mercy petition and on the ground of Bhullar’s “insanity”, it was allowing the curative petition to commute his death sentence to life in prison. Bhullar was suffering from severe depression with psychotic features, as per medical reports. Significantly, Justice Sathasivam had also presided over the bench in the Shatrughan Chauhan case in January 2014, and the commutation of the death penalty for Rajiv Gandhi’s assassins earlier that year. In the former case, while commuting the death sentence imposed on the petitioners to imprisonment for life, the Supreme Court had validated the established principle that “unexplained/ unreasonable/inordinate delay in disposal of mercy petition is one of the supervening circumstances for commutation of death sentence to life imprisonment”. The Supreme Court had further observed that “insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment”. Citing that judgment in the Bhullar case, the Supreme Court had said: “We deem it fit to commute the death sentence imposed on Devender Pal Singh Bhullar to life imprisonment both on the ground of unexplained/inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity of the accused.”

Source: http://www.indialegallive.com/constitutional-law-news/supreme-court-news/death-row-inmates-scaling-down-sentences-58464 (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 Inmates: Scaling Down Sentences (India)

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