Supreme Court India issues notice to Centre on death penalty in SC/ST cases

10 MAY 2019 Last Updated at 4:18 PM | SOURCE: IANS

The Supreme Court on Friday issued a notice to the Centre on a plea challenging the validity of a section which prescribes for mandatory death sentence in a case where an innocent member of a Scheduled Caste (SC) or a Scheduled Tribe (ST) is convicted and is executed as a consequence of false and fabricated evidence given by the accused. The action of a bench headed by Justice S.A. Bobde came on a public interest litigation (PIL) challenging the mandatory death penalty under section 3(2)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The plea was filed by advocate Rishi Malhotra. The advocate told the court that the provision is "manifestly arbitrary, disproportionate, excessive, unreasonable, unjust, unfair, harsh, unusual and cruel".

Under Section 3(2)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, whoever, not being a member of SC/ST, gives or fabricates false evidence intending thereby to cause any member of SC/ST to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life, and with fine, and if an innocent member of SC/ST is convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death.

Rishi Malhotra

The petitioner requested the court to strike down the provision with regard to mandatory death penalty as prescribed under Section 3(2)(i) of The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities) Act 1989. The petitioner said the said law is ultra vires of the Constitution and against the fundamental tenets of Constitutional laws. Citing various other sections which were quashed or amended by the court earlier, the advocate said: "As and when an occasion had arisen where the mandatory imposition of death penalty is called in question in different statutes, either this court by exercising its Constitutional powers of judicial review has struck down those provisions by holding it to be unconstitutional and void or the legislature itself has amended those provisions by removing the mandatory imposition of death penalty."

He mentioned Section 27(3) of the Arms Act which was declared void. He also told the court that the second part of Section 194 IPC is almost akin to Section 3(2)(i) of the Act but with a major difference in sentencing in as much as Section 194 IPC provides for an option of awarding death sentence or sentence of imprisonment for life. Similarly, Section 31A (1)(b) of the NDPS Act which initially provided for mandatory death sentence was rightly amended in 2014 by the legislature itself and further provided for an option of awarding death sentence or any other imprisonment as specified in Section 31 of the Act. Furthermore, if the mandatory death sentences are allowed to continue in the statute books, it would defeat the existence of very important provisions of the Code of Criminal Procedure namely 235(2) Cr.P.C. as well as Section 354 (3) Cr.P.C. both of which provide for hearing of an accused on the quantum of sentence, the advocate added.

Source: https://www.outlookindia.com/newsscroll/sc-issues-notice-to-centre-on-death-penalty-in-scst-cases/1531941 (accessed on 30 May 2019)

Explained: In the Supreme Court, some questions of Life and Death

SC will hear Monday petitions challenging death warrants issued against Amroha couple Shabnam and Salim, who killed 7 of her family in 2008. 

Written by Utkarsh Anand | Published on:May 27, 2015 12:53 am

UTKARSH ANAND examines the laws, rules and issues around the death penalty, and the circumstances warranting execution in India.

Which crimes entail capital punishment in India?

Grave offences such as murder, rape with injuries that may result in the death of a victim and a repeat offender, waging war against the State, and terrorism-related offences causing death are some major crimes punishable with death under the Indian Penal Code. Similarly, there are provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital punishment is prescribed as one of the punishments for serious offences. The now-repealed Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) also contained provisions for death sentence.

What has the Supreme Court ruled on the constitutional validity of the death sentence?

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.

While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan Singh vs State of UP (1973), then in Rajendra Prasad vs State of UP (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

What would constitute a “rarest of rare” case?

The principles as to what would constitute the “rarest of rare” has been laid down by the top court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Bachan Singh formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely left upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?

What has been the Supreme Court’s view on mandatory death penalty?

The Supreme Court has always said that the death sentence should be given rarely. In Mithu vs State of Punjab (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional. It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case. The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murderes. It said all murders would come under the ambit of Section 302, where a court would have the discretion to award life term or death sentence.

Similarly, the Supreme Court ruled in State of Punjab vs Dalbir Singh in 2012 that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional. The government moved a Bill to amend the Act, which is currently pending. There are some other subsequent legislation prescribing the mandatory death penalty in drug cases, but the Supreme Court has not yet struck down the penalty as unconstitutional. A pertinent provision in the Narcotic Drugs and Psychotropic Substances Act, 1985, is currently under scrutiny of the apex court.

What are the avenues available to a death-row convict?

After a trial court awards the death penalty, the sentence requires to be confirmed by a High Court. The sentence shall not be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired. If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition and a curative petition, if the review petition is nixed, for reconsideration of the judgment.

A Constitution Bench ruled last year that a review petition by a death-row convict will be heard by a three-judge bench in open court. Such cases were earlier being heard by two-judge benches in the judges’ chamber. A curative petition is still heard in judges’ chambers. Opening another avenue, the Supreme Court, by yet another path-breaking verdict in 2014, ruled that unexplained delay in execution was a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.

Does the executive have a role in clemency?

Yes. If the Supreme Court turns down the appeal against capital punishment, a condemned prison can submit a mercy petition to the President of India and the Governor of the State. Under Articles 72 and 161 of the Constitution, the President and Governors have the power “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”. This power was without any conditions until the last year’s verdict by the Supreme Court, which held that judicial clemency could be granted on the ground of inordinate delay even after a mercy petition is rejected.

How is the execution of death sentence carried out in India?

Execution is carried out by two modes, namely hanging by the neck till death, and being executed by firing squad. The Code of Criminal Procedure calls for the method of execution to be hanging. It states: “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.” In Deena vs Union of India (1993), the Supreme Court adjudicated upon whether the execution of death penalty by hanging by rope is constitutional. It held the method prescribed under the CrPC was valid. Death by shooting is contemplated under the Army Act, Navy Act and Air Force Act. They provide for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death.

Can an order of execution be challenged in a court of law?

Yes. The procedure for carrying out the execution must also fulfill certain conditions as stipulated by the Supreme Court in Shatrughan Chauhan vs Union of India (2014), and by the Allahabad High Court in Peoples Union for Democratic Rights vs Union of India (2015). The guidelines hold that a death-row prisoner must get free legal aid for drafting a mercy petition and, if it is rejected, an intimation to the prisoner and his family is imperative. A minimum 14 days’ notice for execution must be given to let him “prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs”, besides also allowing him “to have a last and final meeting with his family members.” An execution can be stopped owing to a convict’s physical or mental ill health, the top court has held. The death warrants are issued by the trial court.

In the cases of Shabnam and Salim, the validity of the death warrants have been challenged, contending that the warrants did not specify any date of execution. Further, the convicts still had the legal remedies of filing review and curative petitions, apart from moving clemency petitions.

When was the last execution carried out in India?

The last execution to take place in India was in February 2013, the hanging of Afzal Guru who was convicted of plotting the 2001 attack on India’s Parliament. 26/11 terrorist Ajmal Kasab was hanged in November 2012. Prior to these, the last execution was in 2004, when Dhananjoy Chatterjee was executed for the murder and rape of a 14-year old girl. This was the country’s first execution since 1995, when Auto Shankar, who was convicted of six murders in Tamil Nadu, was executed. Therefore, while the courts sentenced more than 1,400 persons to death between 2001 to 2011, only four have been hanged since 1995. Many of these cases are under the consideration of the Supreme Court and the President for clemency. According to data compiled by the NGO Amnesty International, Indian courts handed down at least 64 death sentences in 2014, but no executions took place. A report by the Death Penalty Research Project of the National Law University in Delhi indicated that at least 270 people were on death row after exhausting all remedies available to them under the law.

Source: http://indianexpress.com/article/explained/explained-in-the-supreme-court-some-questions-of-life-and-death/ [last accessed 28.05.2015]

New ray of hope for death row convicts, SC allows fresh plea for open court hearing

Written by Utkarsh Anand | New Delhi | Posted: September 2, 2014 11:26 am | Updated: September 2, 2014 11:46 am Giving a fresh ray of hope for several death-row convicts, including 1993 Mumbai serial blasts case convict Yakub Abdul Razak Memon , the Supreme Court on Tuesday ruled that their review petitions against the verdict upholding the death sentence will now be heard by a three-judge bench in open court. A Constitution bench headed by Chief Justice R M Lodha said that all the death row convicts, whose review petitions have already been rejected but their sentence has not been executed, may file fresh petitions for an open court hearing of their review pleas within a month and they will be heard for at least half-an-hour. However, in the cases, where the curative petition has already been decided, the death row convict will not have this opportunity to avail the same. The constitution bench verdict came on a batch of petitions seeking that their plea for the recall of verdict upholding their death sentence should be heard in the open court by a three judges bench. As of now the review plea of death row convicts were being considered by the judges in their chambers through circulation. By its order, the court decided a batch of petitions, filed by eight death-row convicts, including Yakub Abdul Razak Memon, convicted in the 1993 Mumbai serial blasts case, and Red Fort Attack case convict Mohd Arif. While Arif’s curative petition has already been rejected, Memon has not exhausted this remedy. The court had in June stayed the execution of Memon, who is the brother of Ibrahim Memon, better known as Tiger Memon, the alleged mastermind and the prime accused who is absconding in the blast case. President Pranab Mukherjee had in April rejected the mercy petition of Memon and the decision was left to the Maharashtra government for fixing the execution date. Memon is lodged in the high-security ward of Nagpur jail. In March last year, the SC had confirmed the death sentence awarded to Memon, holding him guilty of being the “driving spirit” behind the blasts that killed 257 people, while commuting the death sentence awarded to 10 others to life imprisonment till their death. The court had said that Memon’s “commanding position and the crime of utmost gravity” warranted capital punishment. Memon then moved a clemency petition before the President in October last year. A chartered accountant by profession, Memon was arrested in 1994. Gangster Dawood Ibrahim is also an accused in the case. The government had recommended rejection of Memon’s mercy petition on the ground that it was an act of terrorism and did not qualify for pardon. While staying his execution, the court had tagged his plea with a petition by Lashkar-e-Toiba terrorist Mohd Arif alias Ashfaq, who was convicted in the 2000 Red Fort attack case, in which three people, including two Army personnel, were killed. Ashfaq’s petition was referred to the Constitution bench to decide if the review of death penalty cases warranted open court hearings. Others whose appeals against execution of death penalty have been decided include three convicts in the 2000 Dharampuri bus burning incident, a former police constable held guilty in a grotesque rape and murder case, and two other convicts in murder cases. These cases were decided along with the appeal by three AIADMK workers involved in burning to death three college girls in Tamil Nadu in 2000 after J Jayalalithaa’s conviction in a corruption case. The SC had in 2011 stayed execution of capital punishment upheld by it for convicts C Muniappan, Ravindran and Nedunchezhian. It had also stayed the execution of death sentence of former police constable Umesh Reddy, alias B A Umesh, who was convicted of the gruesome rape and murder of a widow in Bangalore in 1998. Sentenced to death for kidnapping a seven-year-old boy and murdering the child after his ransom demand of five lakhs was not met in 2009, Sundarrajan’s plea was also adjudicated in this bunch of petitions. Sonu Sardar was sentenced to death for killing five members of a family in Chhattisgarh in 2004 and his mercy petition was rejected by the President in April. He had also moved the SC, seeking stay on his execution and the court heard his case too. All those whose curative petitions have not been dismisses may move the court again. Source: http://indianexpress.com/article/india/india-others/new-ray-of-hope-for-death-row-convicts-sc-allows-fresh-plea-for-open-court-hearing/ [last accessed 06.02.2015]

Supreme Court strikes down Arms Act provision for mandatory death penalty

Bench says it runs counter to constitutional law and ultra vires Constitution
The Supreme Court on Wednesday declared unconstitutional Section 27 (3) of the Arms Act, which provides for mandatory death sentence to an accused charged with an offence under this provision.

Section 27(3) says: “Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person shall be punishable with death.”

A Bench of Justices A.K. Ganguly and J.S. Khehar said: “A law which is not consistent with [the] notions of fairness while it imposes an irreversible penalty like death is repugnant to the concept of right and reason.”

Writing the judgment, Justice Ganguly said the scope of Section 27(3) was very wide in that anything done in contravention of Section 7 and with the use of prohibited arms and ammunition resulting in death would attract the death penalty. “Even if an act done in contravention of Section 7, namely, acquisition or possession or manufacture or sale of prohibited arms results in the death of any person, the person in contravention of Section 7 shall be punished with death.”

Dealing with the question arising out of a judgment by the Punjab and Haryana High Court, the Bench said: “In fact, the challenge to the constitutional validity of [the] death penalty under Section 302 of the Indian Penal Code has been negatived in the ‘Bachan Singh case' in view of the sentencing structure in Sections 235 (2) and 354 (3) of the Criminal Procedure Code. By imposing mandatory death penalty, Section 27 (3) of the Arms Act runs contrary to those statutory safeguards which give [the] judiciary the discretion in the matter imposing [the] death penalty. Section 27(3) of the Arms Act is thus ultra vires the concept of judicial review, which is one of the basic features of our Constitution.”

The Bench said: “This is thus a very drastic provision for many reasons. Apart from the fact that this imposes a mandatory death penalty, the Section is so widely worded to the extent that if, as a result of any accidental or unintentional use or any accident arising out of any act in contravention of Section 7, death results, the only punishment, which has to be mandatorily imposed on the person in contravention, is death. Therefore, the provision of Section 27(3) of the Act is violative of Articles 14 and 21 of the Constitution.”

The Bench said: “Apart from that, Section 27 (3) is a post-constitutional law and has to obey the injunction of Article 13 which is clear and explicit. Article 13 (2) says ‘The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. In view of the mandate of Article 13 of the Constitution, Section 27(3) having been enacted in clear contravention of fundamental rights, Section 27(3) of the Act is repugnant to Articles 14 and 21 and is void. Section 27(3) of the Act also… [prevents] the judiciary from discharging its constitutional duties of judicial review, whereby it has the power of using discretion in the sentencing procedure.”

The Bench held that this provision was against the fundamental tenets of the constitutional law and ultra vires the Constitution.

The Hindu - 2.2.2012