‘Judicial innovation’ helps SC avoid awarding death penalty

NEW DELHI, SEPTEMBER 19, 2016 00:42 IST

Krishnadas Rajagopal

Death penalty is substituted with a “special category” of prolonged life imprisonment.

Tattu Lodhi, child rapist and murderer, cheated the noose on Friday because the Supreme Court decided to opt for a “judicial innovation” instead of the death penalty. This judicial innovation, formalised by a Constitution Bench of the Supreme Court in the >Rajiv Gandhi killers’ case in December 2015, helps “get rid of death penalty” and addresses the genuine concerns of the society to see justice done, a three-judge Bench led by Justice J. Chelameswar observed in its recent judgment.

No remission 

The innovation involves substituting death penalty with a “special category” of life imprisonment without the benefit of release on remission for prolonged periods ranging from 25 to 30 years, if not more. This innovative approach veering away from capital punishment was formalised after the Supreme Court gave itself the authority to tweak the sentencing laws and evolve a special category of sentence in its judgment in Union of India versus Sriharan alias Murugan last year. The special category is to be limited to a “very few cases”. This special category finds its first mention in the Swami Shraddananda versus State of Karnataka judgment of the Supreme Court in 2008.

The innovation, according to Justice S.K. Singh, who authored the Lodhi judgment for Justice Chelameswar's Bench, is an endeavour by the apex court to make “no party (convict or the society) a loser”. So having saved Lodhi from the hangman's rope, Justice Singh stripped him of his right to apply for release from prison on remission for the next 25 years. Thus, any hope Lodhi might have had for his release after serving the first 14 years was effectively extinguished. The prolonged period of incarceration with no hope, Justice Singh observed, was justice enough for the rape and murder of a “defenceless child” whose body was found in a gunny bag at Lodhi's residence in 2011.

Society’s concerns 

“The judicial innovation bridges the gap between death sentence on the one extreme and only 14 years of actual imprisonment in the name of life imprisonment on the other... it serves a laudable purpose,” the Supreme Court observed. Law Commission of India Chairperson, Justice B.S. Chauhan, seconds the judgment's optimism, saying the Supreme Court may have indeed found an “alternative” to capital punishment. Quoting both the Sriharan and Shraddananda verdicts, Justice Singh, in his judgment in the Tattu Lodhi case, observed that “the innovative approach, on the one hand, helps the convict get rid of death penalty in appropriate cases. On the other, it takes care of genuine concerns of the victim, including the society...”

Source: https://www.thehindu.com/news/national/%E2%80%98Judicial-innovation%E2%80%99-helps-SC-avoid-awarding-death-penalty/article14986910.ece (Accessed 20 December 2018)

UPDATED: 

SC dismisses review plea by death row convict

The supreme Court Tuesday dismissed a plea by a death row convict Sonu Sardar seeking recall of its Febr 23, 2012 verdict upholding his death sentence for "ruthlessly killing" five members of a scrap dealer's family in Chhatisgarh. A bench of Justice Anil R. Dave, Justice J. Chelameswar and Justice Uday Umesh Lalit dismissed the plea after holding a detailed hearing of the matter in the open court. Sardar along with Ajay Singh and three more people had killed Shamim Akhtar, a scrap dealer and four members of his family.

The apex court Feb 23, 2012, while upholding Sardar's death sentence, had said: "Five members of a family including two minor children and the driver were ruthlessly killed by the use of a knife, an axe and an iron rod and with the help of four others. The crime was obviously committed after pre-meditation with absolutely no consideration for human lives and for money." "Even though the appellant was young, his criminal propensities are beyond reform and he is a menace to the society.

The trial court and the high court were therefore right in coming to the conclusion that this is one of those rarest of rare cases in which death sentence is the appropriate punishment," the court had said in its judgment. Sardar's plea seeking the review of the court's Feb 23, 2012 order was taken up for an open court hearing following the apex court constitution bench's Sep 2, 2014 decision that in the cases where the death sentence has been upheld by the apex court, the death row convict will have a right that his petition seeking a review will be heard by the three judges bench in an open court.

Source: http://news.webindia123.com/news/Articles/India/20150210/2535991.html [last accessed 12.02.2015)

Government opposes Red Fort convict’s plea against death sentence

Wed, Jul 16, 2014

New Delhi: The central government on Tuesday opposed the December 22, 2000 Red Fort terror attack convict Mohamed Arif’s plea that his death sentence should not be carried out since he has already undergone life sentence of nearly 14 years and could not be punished twice for the same offence. Its stand came as the Supreme Court reserved its order on a batch of petitions that contended that an appeal in a death sentence case be heard by five judges bench and review of the court’s order (on the appeal) too be heard in an open court.

The convict (Arif’s) availed the judicial remedies by filing appeals, and the time spent during the disposal of those appeals could not be counted as if he had undergone the sentence, Solicitor General Ranjit Kumar told the constitution bench of Chief Justice R.M.Lodha, Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice A.K.Sikri and Justice Rohinton Fali Nariman. “Arif has taken a chance of court procedure. Mere pendency of the matter can’t treated as if he undergoing sentence,” the SG told the court counting the dates and years when he moved the high court and the apex court including filing a review and then curative petition.

In a death case if anything is pending then death sentence would not be carried out

“In a death case if anything is pending then death sentence would not be carried out,” Ranjit Kumar said. Earlier in the course of the hearing, the SG, opposing the open court hearing of the review petition, told the court that it was different from an appeal against the order of the lower court and thus the scope of hearing the two was also different. At present the review petitions are decided by the judges in their chambers through circulations.

Ranjit Kumar told the court that a review plea could only be taken up in the open court for oral hearing provided some new issues or points have been raised which were not before any of the courts in the earlier hearings of the case. He said that plea for an oral hearing of the review petition in the open court could not be camouflaged as an appeal against the apex court’s earlier order in the matter. At this, the court said that in deciding the death sentence cases, the court has to balance between the aggravating and mitigating circumstances and in striking that balance, there can be an error – which can be pointed out in the course of the open hearing of the review petition.

Chief Justice Lodha said that the error may be one in million cases but even that one case is important in advancing the course of justice as it involves a human life – the loss of which is irreversible. The court also suggesting framing of guidelines for hearing the review petitions in death sentence cases in open court. “One way could be framing of the guidelines under which the matter could be sought to be heard in open court in a review petition,” the court said trying to find some common ground. Ranjit Kumar however said that these guidelines could not be strait-jacketed and have to be applicable from case to case depending on their categories.

The court reserved its order on a batch of petitions including Lashkar-e-Taiba militant Arif alias Ashfaq, 1993 Mumbai bomb blast death row convict Yakub Abdul Razak Memon and Nedunchezhiyan, Ravindran and C. Muniappan, all convicted and sentenced for setting on fire a bus carrying students of Tamil Nadu Agricultural University in February 2000 to protest the sentencing of Chief Minister Jayalalithaa.

Source: http://www.indileak.com/government-opposes-red-fort-convicts-plea-against-death-sentence/ [last accessed 06.02.2015]