There is class bias in awarding death penalty

Harsh Mander, Hindustan Times October 13, 2013 Last Updated: 23:22 IST(13/10/2013) Last winter, two men were hanged to death in India’s jails, indicted for crimes of terror. On August 8, another man, Maganlal Barela— a little-known tribal cultivator, charged with killing his five little daughters — was scheduled to hang in the Jabalpur Central Jail. Human rights lawyers chanced to read of his hanging in an online news item the evening before his execution was fixed, and rushed to meet Supreme Court Chief Justice P Sathasivam. The chief justice agreed to hear them that evening and concurred that even after the president rejects the mercy petition of a death row convict, there is one more legal remedy: to challenge this rejection in the Supreme Court. Barela was too poor to afford a lawyer in the higher courts but for the team of committed human rights lawyers — Yug Chaudhary, Siddhartha and Colin Gonsalves — and the stay granted by Justice Sathasivam, he would have been sent to the gallows. There are many reasons I oppose his death penalty. The gravity of his crime is not one of them, nor the merits of the judgment holding him guilty. My consideration is the class bias of capital punishment. It can hardly be a coincidence that the majority of the 414 people who faced the gallows in India as of the end of 2012 are impoverished, dependent at best on legal aid lawyers. I recently visited Barela’s family living on the outskirts of a tribal Barela hamlet outside Kaneria village in Sehore district of Madhya Pradesh. Their crumbling home, the sickly pallor of their children’s skin and hair, and their gaunt frames and tired faces testify to lives of unrelenting struggle and want. Barela’s brothers and two wives said that the only months in which food is secure are those that follow the occasional good monsoon, when they live on what they grow on their acre of dry-land. At other times, they await uncertain daily-wage employment from the forest department, or gather firewood in the forests and sell them. After the crime, Barela’s brothers pooled Rs. 5,000 and hired a local lawyer. Once he was convicted in the trial court, they had no further idea about the progress of the case, until they abruptly received notice of his hanging. Barela was represented by legal aid lawyers who never met them. The Supreme Court refused to even admit his petition — let alone hear it on merits — with a single line order. I am convinced that his fate could have been different if he was represented by a high-profile lawyer. Just the few hours we spent in the village threw up many possible arguments which could have been made, if not for his innocence, at least to mitigate his inclusion in the ‘rarest of the rare’ cases meriting the highest penalty of death. There was, first, his manifest abject poverty. Also, not just his wives and brothers, but other villagers testified to his affable nature, the absence of any history of violence and crime, and that he loved his daughters dearly. Villagers said that his behaviour changed dramatically four months before the grisly offence. He suddenly became withdrawn and quiet, and would wander alone for hours in the forests. Villagers explained this as black magic. A more convincing explanation could be of mental illness, perhaps a temporary breakdown because he could not make ends meet. He is receiving psychiatric medication in the Jabalpur prison. The threshold of insanity required if courts are to declare a person innocent is very high. But if evidence from villagers and neighbours suggesting mental illness could have been brought before the courts, could this not have persuaded the courts to at least not hang him? Additionally, the case against Barela is based on circumstantial evidence, as there are no eye-witnesses to the crime. In a similar case in which a man killed his children, the apex court recently awarded reprieve from capital punishment partly on grounds of the mitigating circumstances of “poverty, socio-economic, psychic compulsions and undeserved adversities in life”. In the infamous tandoor case, a Bench headed by the chief justice observed that this was not a ‘crime against society’, and the appellant had no criminal antecedents. All these same arguments could equally apply to Barela’s case. If only Barela’s family could have afforded effective legal representation in the trial and higher courts, it is possible that the trial court’s sentence could have been less severe, and the higher courts could have come to similar conclusions about mitigating circumstances. Are we then actually hanging Barela only because of his crime of being poor? There are also larger philosophical questions about why a society chooses to execute those who violate human and social morality. Is our motivation to prevent further crimes? Do we credibly believe that the next time a father is driven to consider murdering his own children — in a moment of intense rage, despair or madness — he will be deterred only because of the possibility that he may be hanged to death? Barela’s brother says he tried to hang himself after the killing of his daughters, and was saved only because his brother cut the rope in time. Or is our objective in seeking capital punishment actually of retribution, to take the life of a person who outrages and violates what we cherish: in this case a murderous father? It is evident that persons most directly violated by the crime — the mothers of the five girls who were killed— have forgiven him for what the courts have found him guilty. They recalled to us how he was an affectionate father and a kind husband, how he loved his children, and that he never raised a hand on any of them before that horrific day. Their fields lie fallow; their older son has had to drop out of school and instead grazes cattle. “We only wish he could return home and take care of his family”, his wives say. If they can forgive him, can we not? Harsh Mander is Director, Centre for Equity Studies The views expressed by the author are personal Source: http://www.hindustantimes.com/editorial-views-on/ColumnsOthers/There-is-class-bias-in-awarding-death-penalty/Article1-1134733.aspx#.UluZ33Sg5yA.email [accessed 14th October 2013]

Are we carving out separate jurisdiction for death row prisoners, SC asks

Dhananjay Mahapatra, TNN Aug 9, 2013, 02.56AM IST

NEW DELHI: In a midnight order, the Supreme Court stopped Jabalpur jail authorities hours before they were to take Maganlal to the gallows on Thursday to execute the capital punishment given to him for hacking to death his five daughters, the eldest of whom was just six years, in Madhya Pradesh's Sehore district.

NGO 'People's Union for Democratic Rights' through senior advocate Colin Gonsalves swung into action late on Wednesday evening after the TOI website reported Maganlal's imminent execution in Jabalpur central jail and moved Chief Justice of India P Sathasivam, who held court at his residence close to midnight and ordered the authorities to put the scheduled execution on hold till Thursday.
On Thursday, sitting with Justice Ranjana Desai, Justice Sathasivam extended the stay on Maganlal's execution till further orders after Gonsalves doubted whether authorities had intimated the convict's family about the President's July 22 decision to reject his mercy plea.

Though the apex court has always acted in favour of right to life, a recent spate of petitions filed at the eleventh hour seeking stay of execution after rejection of mercy petitions by the President forced the bench of Justices Sathasivam and Desai to wonder aloud, "Are we creating a separate post-mercy rejection jurisdiction?"

There was a reason for the CJI to express his nuanced thoughts, because death warrants are issued against a condemned prisoner only after he goes through all tiers of judicial remedy - appeal in the high court, then in Supreme Court and following it up with review and curative petitions - to challenge the death sentence imposed on him by the trial court which awards capital sentence after finding the heinous crime fitting into the SC-devised 'rarest of rare' category.

In a similar late evening sitting on April 6 at the residence of Justice Sathasivam, he along with Justice MY Eqbal had stayed the execution of eight persons whose mercy pleas had been rejected. There too, PUDR was the public interest petitioner for the death row prisoners.

During the April 6 hearing, the bench of Justices Sathasivam and Eqbal had said it was entertaining the petition to ascertain whether proper communication had been sent to the relatives of these condemned prisoners whose mercy pleas had been rejected.

"It should not happen as it happened in the Jammu and Kashmir case (Afzal Guru's hanging). The intimation of the execution reached the relatives of the person (Afzal) after his hanging. That is bad. The relatives lost an opportunity to meet the condemned prisoner for one last time before his execution," the bench had said.

Gonsalves picked up the thread from the April 6 hearing and on Thursday argued before the bench of Justices Sathasivam and Desai that "no communication appears to have been sent to the family of Maganlal after the rejection of his mercy plea". The court allowed PUDR's lawyers - Rishabha Sancheti, Yug Mohit Chaudhry and Puja Sharma - to meet the family of the condemned prisoner and ascertain facts.

A trial court had on February 3, 2011, found Maganlal guilty of beheading his daughters Jamuna (1), Phool Kanwar (2), Aarti (4), Savita (5) and Leela (6) with an axe following a dispute over property with his two wives on June 11, 2010. The high court upheld the trial court decision seven months later and the Supreme Court dismissed his appeal on January 9 last year. 

Source: http://articles.timesofindia.indiatimes.com/2013-08-09/india/41236594_1_mercy-petitions-mercy-plea-execution [accessed 12th August 2013]

Supreme Court stays execution of Maganlal

J. Venkatesan

Published: August 8, 2013 04:05 IST | Updated: August 8, 2013 15:59 IST 

 

The Supreme Court on Thursdayextended until further orders its stay of the execution of Maganlal Barela , who was sentenced to death for beheading his five daughters after an argument with his two wives. 

On Wednesday night the Chief Justice of India P Sathasivam passed an interim order of stay of executionat his residence around 11.30 pm after senior counsel Colin Gonsalves approached him with a plea to suspend the execution scheduled for Thursday morning. 

Today during the resumedhearing before a bench of CJI and Justice Ms Ranjana Desai, counsel Colin Gonsalves submitted that the President didn't communicate the rejection of the mercy petition to the convict and he did not know when the mercy petition was rejected. He said there was no transparent and fair procedure in disposal of mercy petition. 

The CJI said, " slowly we are creating one more jurisdiction after the Supreme Court dismisses the criminal appeal and the President rejects the mercy petition."However the bench directed the present petition filed by People's Union for Democratic Rights on behalf of the convict to be listed along with a batch of other petitions to be heard by a constitution bench which will determine questions relating to delay in disposal of mercy petitions by the President and connected issues.

Last month, the Sehore District and Sessions Court issued a black warrant for Mr. Barela’s execution after President Pranab Mukherjee rejected his clemency petition last month. His plea to commute his sentence to life imprisonment had been rejected by the High Court and the Supreme Court. Barela killed his five daughters, aged 1 to 6, with an axe in the village of Kaneria on June 11, 2010. He tried to hang himself after the crime, but was unsuccessful. 

Source: http://www.thehindu.com/news/national/other-states/supreme-court-stays-execution-of-maganlal/article5001475.ece?homepage=true&ref=relatedNews [accessed 12th August 2013]

 

Pranab sits on clemency petitions of 11 death row convicts

NEW DELHI Among the ceremonial invitations piled on the desk of India’s new President Pranab Mukherjee sits a small file that could provide the veteran politician with one of his biggest challenges. The folder contains 11 mercy petitions from condemned convicts for whom Mukherjee now represents the last legal obstacle between their death row cells and the hangman. As president, Mukherjee is required to decide on clemency petitions that are forwarded by the home ministry, in the final stage of death penalty appeals process. It is largely an inherited challenge. India has more than 400 people on death row and the courts hand down fresh death sentences every year. But Mukherjee’s three presidential predecessors, while signing off on a number of recommendations for clemency, often stonewalled when it came to appeals the ministry recommended should be rejected. As a result, only one execution has taken place in 15 years - that of a former security guard hanged in 2004 for the rape and murder of a 14-year-old girl. The lack of executions has led some to question why India retains a death penalty it so rarely enforces. Colin Gonsalves, an advocate in the Supreme Court and a founder of the Human Rights Law Network, points to surveys showing public opinion strongly in favour of capital punishment. “The idea of revenge is widely accepted here,” Gonsalves said. “If they try to abolish it, then the opposition will appropriate the issue and attack them,” Gonsalves said. Some legal experts believe the hiatus on executions partly reflects reluctance to hang people affiliated with an ethnic, religious or political group. “The government has to wait and check which groups will be upset before you execute someone,” said Supreme Court advocate Sanjay Hegde. Other observers say the main cause of the lack of executions has been the actions - or not - of Mukherjee’s three predecessors, KR Narayanan, APJ Abdul Kalam and Pratibha Patil. The recommendation of the home ministry can be returned for reconsideration - but only once, after which the president is constitutionally obliged to follow the ministry’s lead. However, there is no set time limit for providing the presidential signature, leaving room for endless delays. After taking office in 1997, Narayanan opted to sit on eight clemency petitions until his term expired. Kalam followed suit. As well as the eight he inherited, he received 17 more, but acted on only two. One was approved and the other rejected - leading to India’s last execution in 2004. The growing list of 23 pending appeals was then passed on to Patil who received another nine petitions during her tenure. In an attempt to clear the backlog, Patil acted on the home ministry’s recommendations to grant clemency in 19 cases and refuse it in two, including the case of Rajiv Gandhi’s murderers. She left 11 for Mukherjee, among them several toxic cases, including Mohammed Afzal Guru, a Kashmiri sentenced to death for his role in the 2001 attack on Parliament. Mukherjee may also come under pressure to reject any petition from Mohammed Kasab, the sole surviving gunman from the 2008 Mumbai attacks, who was sentenced to death two years ago. Source: Oman Tribune Thursday, August 30, 2012 http://www.omantribune.com/index.php?page=news&id=126078&heading=India [accessed on 30th August 2012]