Abolish Death Penalty India: HC orders day-to-day hearing in a death sentence case of 1984 riots (New Delhi)

Wednesday, May 29, 2019

HC orders day-to-day hearing in a death sentence case of 1984 riots (New Delhi)

PTI | Apr 1, 2019, 06.44 PM IST

NEW DELHI: The Delhi high court has ordered day-to-day hearing in the death reference as also the convict's appeal against the capital punishment awarded to him in a 1984 anti-Sikh riots case. A bench of Justices Siddharth Mridul and Manoj Kumar Ohri said the appeal and the death reference of convict Yashpal Singh would be heard on daily basis till the conclusion of arguments. "List for hearing on April 22. It is made clear that the hearing of the connected appeal and death reference shall be conducted on day to day basis till the conclusion of the arguments," the bench said in a recent order. The court had earlier sought response of the police on Yashpal's plea challenging his death sentence in the case. He has filed the appeal against his conviction and sentence by a trial court here.

He has also filed a bail plea in the matter. The bench had also issued notice to Yashpal on the reference to confirm his death sentence. The trial court had also awarded life term to co-convict Naresh Sherawat in the case relating to the killing of two men in New Delhi during the 1984 riots -- the first convictions in the cases reopened by the Special Investigation Team (SIT). Naresh has also appealed against his conviction and sentence before the high court which has sought response of the police in the plea. The Delhi Police had closed the case in 1994 for want of evidence, but it was reopened by the SIT. The SIT is investigating nearly 60 cases related to the riots, while it has filed "untraced report" in 52 cases. While this was the first death penalty after the SIT was formed, one Kishori was earlier given the death penalty by a trial court in as many as seven anti-Sikh riots cases. However, the Delhi high court confirmed death penalty only in three cases, which were later commuted to life term by the apex court.

As per the Code of Criminal Procedure (CrPC), the death penalty cannot be executed unless confirmed by the high court. The trial court had awarded varying jail terms to the convicts and imposed fines for offences including attempt to murder, dacoity and attacking victims by dangerous weapons. It had spared convict Naresh the gallows on medical grounds. Earlier, the trial court had convicted Yashpal and Naresh for killing Hardev Singh and Avtar Singh in Mahipalpur area of South Delhi on November 1, 1984 during the riots that had taken place after the assassination of then Prime Minister Indira Gandhi at her residence by two Sikh bodyguards a day before. The case was lodged on a complaint by victim Hardev's brother Santokh Singh.

The trial court had held both the accused guilty for the offences of murder, attempt to murder, dacoity and voluntarily causing hurt by dangerous weapons or means under the IPC. A mob of about 500 persons, led by the two convicts, had encircled the house of the victims and had killed them. It was just one of the incidents out of several others Delhi alone witnessed during the riots that saw around 3,000 people being killed. Of the 650 cases registered in connection with the anti-Sikh riots in Delhi, 267 were closed as untraced by the Delhi Police. Of these 267 cases, five were later taken up by the CBI. The SIT also scrutinised records of 18 cancelled cases.

Source: https://timesofindia.indiatimes.com/india/hc-orders-day-to-day-hearing-in-a-death-sentence-case-of-1984-riots/articleshowprint/68673619.cms (accessed on 29 May 2019)

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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

Wednesday, May 29, 2019

HC orders day-to-day hearing in a death sentence case of 1984 riots (New Delhi)

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