Abolish Death Penalty India: Solitary Confinement Of A Death Convict Before The Exhaustion Of His Complete Legal And Constitutional Remedies Unconstitutional: Uttarakhand HC

Monday, December 24, 2018

Solitary Confinement Of A Death Convict Before The Exhaustion Of His Complete Legal And Constitutional Remedies Unconstitutional: Uttarakhand HC

BY: APOORVA MANDHANI APRIL 29, 2018 12:18 PM

The Uttarakhand High Court held that practice to keep the convict in custodial segregation/solitary confinement before the exhaustion of his constitutional, legal and fundamental rights is unconstitutional.

The Bench comprising Justice Rajiv Sharma and Justice Alok Singh ruled, “It will amount to additional punishment. It also amounts to torture and violative of his basic human rights. Accordingly, we abolish the practice adopted by the jail authorities, by segregating a convict sentenced to death, immediately after the confirmation of sentence by the High Court, being unconstitutional. 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 or constitutional procedure. 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 appellants shall not be kept in segregation till they are found to be “prisoners sentenced to death”, in view of the law discussed hereinabove.

Justice Alok Singh (L) and Justice Rajiv Sharma (R)

Confirmation of death sentence

The Court was hearing appeals filed by convicts challenging the death sentence awarded to them for gang rape and murder of a 55-year-old woman. They had also been convicted under Section 3(2)(v) of the SC/ST Act, which prescribes life imprisonment for a person who commits an IPC offence punishable with a 10-year imprisonment or more against a person for the reason of them being a member of the SC or ST community. Additionally, the State Government had filed criminal reference for confirmation of death sentence imposed on the convicts.

During the hearing, the Court opined that the ingredients of 3(2)(v) of the Act “were lacking from the very beginning and the prosecution has not led any evidence to prove this charge.” It, however, opined that the case would nevertheless fall into the category of“rarest of rare cases”, explaining,

“The instant case would fall in the category of the rarest of rare case. The appellants have caused as many as 10 injuries to the deceased. They have mutilated the private parts of the deceased. Injury No.8 itself was sufficient to cause death of the deceased. Though the instant case is based on the circumstantial evidence but the chain is complete. It is a case of rape and brutal murder of the deceased.”

Solitary confinement

After confirmation of the death penalty, the Court looked into the procedure adopted by the State post such confirmation. Referring to the Uttar Pradesh Jail Manual, the Court noted that every convict awarded death sentence is to be confined in a cell apart from all other prisoners and is to be placed under the watch of a special guard. Further, he is to be allowed only half an hour twice a day out of his cell, and needs to be handcuffed during this time.

It then referred to several researches and precedents on the subject to note the psychological impact of such confinement, observing,“There is no scientific reason why the convict sentenced to death should be kept in isolation for indefinite period till he exhausts all his constitutional and legal remedies. It causes immense pain, agony and anxiety to the condemned convict. It is violative of Articles 20(2) and 21 of the Constitution of India. A man, even sentenced to death, has certain privileges and rights which cannot be denied to him due to colonial mindset. The provisions of U.P. Jail Manual are anarchic, cruel and insensitive.”

The provisions of U.P. Jail Manual are anarchic, cruel and insensitive

The Bench also held that the provisions of U.P. Jail Manual are anarchic, cruel and insensitive.

“The U.P. Jail Manual also lays down that a warder shall not allow any person to go near or communicate with the convicts, except the Superintendent and prescribed authorities. Under the U.P. Jail Manual, the prisoner is supposed to be in isolation for more than 23 hours a day. This is against the Nelson Mandela Rules. He has no contact with outside world. He is kept in solitary confinement till he is acquitted or pardoned. There is no scientific reason why the convict sentenced to death should be kept in isolation for indefinite period till he exhausts all his constitutional and legal remedies. It causes immense pain, agony and anxiety to the condemned convict. It is violative of Articles 20(2) and 21 of the Constitution of India. A man, even sentenced to death, has certain privileges and rights which cannot be denied to him due to colonial mindset”.

The Bench observed that keeping a convict in an isolated cell has psychiatric impact on him.

“It causes him heart palpitations (awareness of strong and/or rapid heartbeat while at rest), diaphoresis (sudden excessive sweating), low mood to clinical depression, emotional flatness/blunting – loss of ability to have any ‘feelings’, emotional ability (mood swings), hopelessness, social withdrawal; loss of initiation of activity or ideas; apathy; lethargy, major depression, anger, ranging from irritability to full blown rage, irritability and hostility, poor impulse control, outbursts of physical and verbal violence against others, self and objects, unprovoked anger, sometimes manifesting as rage, cognitive disturbances, ranging from lack of concentration to confusional states, short attention span, poor concentration, poor memory, confused thought processes; disorientation, perceptual distortions, ranging from hypersensitivity to hallucinations, hypersensitivity to noises and smells, distortions of sensation (e.g. walls closing in), disorientation in time and space, depersonalisation/derealisation, hallucinations affecting all five senses, visual, auditory, tactile, olfactory and gustatory (e.g.hallucinations of objects or people appearing in the cell, or hearing voices when no-one is actually speaking), paranoia and psychosis, ranging from obsessional thoughts to full blown psychosis, recurrent and persistent thoughts (ruminations) often of a violent and vengeful character (e.g. directed against prison staff), paranoid ideas – often persecutory, psychotic episodes or states: psychotic depression, schizophrenia, self-harm and suicide etc”.

Source: https://www.livelaw.in/solitary-confinement-of-a-death-convict-before-the-exhaustion-of-his-complete-legal-and-constitutional-remedies-unconstitutional-uttarakhand-hc-read-judgment/ (Accessed 24 December 2018)

No comments:

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

Monday, December 24, 2018

Solitary Confinement Of A Death Convict Before The Exhaustion Of His Complete Legal And Constitutional Remedies Unconstitutional: Uttarakhand HC

No comments:

Post a Comment

Followers