Abolish Death Penalty India: No Prisoners Convicted For Rape, Murder, Corruption to be Released Under Govt Amnesty Scheme (All India)

Tuesday, December 25, 2018

No Prisoners Convicted For Rape, Murder, Corruption to be Released Under Govt Amnesty Scheme (All India)

Published: August 13, 2018 6:22 PM IST

New Delhi, Aug 13: Prisoners, including politicians, who have been convicted in cases of murder, rape or corruption, will not be released as part of an amnesty scheme announced by the government for the year-long celebrations to mark the 150th birth anniversary of Mahatma Gandhi beginning October 2.

Women convicts aged 55 years and above and male convicts of 60 years or more, who have completed half of their sentence, and a few other categories of prisoners in jails across the country will be released under the amnesty scheme on October 2, 2018, April 6, 2019 and October 2, 2019, Home Ministry officials said. The central government has already conveyed to all states the guidelines on who all eligible for amnesty and asked them to prepare a list by August 15 so that the first batch could be released on October 2, the birth anniversary of Mahatma Gandhi.

The following categories of prisoners, who have consistently maintained overall good conduct, will be eligible for special remission:

Women convicts of 55 years of age and above, who have completed half of their actual sentence period, without counting the period of general remission earned by them;
Transgender convicts of 55 years of age and above, who have completed half of their actual sentence period, without counting the period of general remission earned by them;
Male convicts of 60 years of age and above, who have completed 50 per cent of their actual sentence period, without counting the period of general remission earned by them;
Physically challenged/disabled convicts with 70 per cent disability and more, duly certified by a medical board, who have completed half of their actual sentence period;
Terminally ill convicts, duly certified by a medical board;
Convicted prisoners who have completed two-third (66 per cent) of their actual sentence period;

However, the special remission is not to be granted to persons convicted for an offence for which the sentence is death penalty or where death sentence has been commuted to life imprisonment.

The other categories of prisoners who will not be considered for amnesty are:

Persons convicted for an offence for which punishment of death has been specified as one of the punishments;

Persons convicted for an offence for which punishment of life imprisonment has been specified as one of the punishments.
Cases of convicts involved in terrorist activities or persons convicted under Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), The Prevention of Terrorism Act, 2002 (POTA), Unlawful Activities (Prevention) Act, 1967 (UAPA), The Explosive Substances Act, 1908, The National Security Act, 1982 (NSA), Official Secrets Act, 1923, Anti-Hijacking Act, 2016;
Prisoners convicted for dowry death;
Those convicted for counterfeiting currency notes (FICN) – cases under section 489 (A to E) of Indian Penal Code;
Prisoners convicted for the offence of Rape, human trafficking and the Protection of Children from Sexual Offences Act, 2012 (POCSO), Immoral Traffic (Prevention) Act, 1956;
Cases of prisoners convicted under Prevention of Money Laundering Act, 2002, Foreign Exchange Management Act, 1999 (FEMA), Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015;
Cases of prisoners convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS);
Prisoners convicted under the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities), Act, 2005;
Those convicted under the Prevention of Corruption Act, 1988;
Prisoners convicted for offences against the State (Chapter-VI of IPC); and prisoners convicted under any other law which the state government and union territory administrations consider appropriate to exclude.

Since prisons and persons detained therein are ‘State’ subjects, the state governments have been advised to constitute a state level committee to examine cases of eligible prisoners satisfying and fulfilling the conditions, an official said. The state governments will place the recommendation of the committee before the Governor for consideration and approval in exercise of his power under Article 161 of the Constitution of India and in case of Jammu and Kashmir under Section 34 of its Constitution. Cases where approval of the central government is required as per law may be sent to the Ministry of Home Affairs. The foreign nationals, who have been convicted, shall be released with the concurrence of the Ministry of External Affairs, another official said. The official made it clear that prisoners, including politicians, who are serving sentence for rape, murder or corruption, will not be released under the scheme.

Source: https://www.india.com/news/india/no-prisoners-convicted-for-rape-murder-corruption-to-be-released-under-govt-amnesty-scheme-3221216/ (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

No Prisoners Convicted For Rape, Murder, Corruption to be Released Under Govt Amnesty Scheme (All India)

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