Abolish Death Penalty India: High Court abolishes solitary confinement for murder convicts in Haryana jails (Haryana)

Tuesday, December 25, 2018

High Court abolishes solitary confinement for murder convicts in Haryana jails (Haryana)

Written by Sofi Ahsan |Chandigarh |Updated: December 8, 2018 8:53:15 am

Removing the provision will require the Punjab government to make amendments to the Jail Manual or for the court, acting on a legal challenge, to quash the provision.

The Punjab and Haryana High Court Friday abolished the practice of keeping death row inmates in solitary confinement in Haryana jails, ruling that it is without authority of law and amounts to additional punishment. The order for abolishing the practice came as part of a judgment commuting the death sentence of three persons convicted last year by a Mahendergarh court for rape and murder of a nine-year-old in 2014 to a mandatory 20-year imprisonment without remissions. The court order for “abolishing” is specific to the “practice” adopted by jail authorities in Haryana, but the division bench of Justices Rajiv Sharma and Gurvinder Singh Gill has not passed any order to remove the provision which forms part of the Punjab Jail Manual which has been adopted by Haryana.

Justice Gurvinder Singh Gill

Removing the provision will require the Punjab government to make amendments to the Jail Manual or for the court, acting on a legal challenge, to quash the provision. The bench called the provision “anarchic, cruel and insensitive,” reflective of “a colonial mindset” and violative of Articles 20 (2) and Article 21. In a 111-page judgment, the court said the practice amounts to torture and is violative of the person’s basic human rights. “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.”

Justice Rajiv Sharma

The judges in the verdict have take note of the research done by American Civil Liberties Union on the medical consequences which people in solitary confinement face, an article published in the Harvard Law Review, a 2005 US Supreme Court judgment, a 1978 Indian Supreme Court judgment and a book on solitary confinement written by Sharon Shalev. The Punjab Jail Manual, according to the judgment, specifies that at present “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 court yard of his cell for half an hour each morning and evening.”

The verdict was passed in the 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 convicts, according to their advocates, were immediately sent to solitary confinement after being sentenced to death, In November 2014, the nine-year-old victim had been kidnapped by the accused Arun, Rajesh and Deepak when she had gone out with a mouse trap in her hand to drop the mouse outside. She was raped and throttled by the convicts, according to police. “We are of the view that this case does not fall in the ambit of the “rarest of rare case” for awarding death sentence to the appellants. Though according to the final opinion, death is violent but it cannot be termed that it has pricked collective conscious of the society. The young girl was killed by throttling but it cannot be termed gruesome murder,” the bench said, while providing reasoning for commuting the death sentence.

Source: https://indianexpress.com/article/india/high-court-abolishes-solitary-confinement-for-murder-convicts-in-haryana-jails-5484083/ (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

High Court abolishes solitary confinement for murder convicts in Haryana jails (Haryana)

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