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 The now-repealed Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) also contained provisions for death sentence.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]

Afzal Guru's hanging 'wrong', Shashi Tharoor tweets

TNN | Feb 9, 2015, 04.39 PM IST

NEW DELHI: In remarks which are likely to stir a controversy, Congress leader Shashi Tharoor on Monday termed Parliament attack convict Afzal Guru's hanging as "wrong and badly handled". Afzal Guru, who was handed a death penalty in the 2001 Parliament attack case, was hanged on February 9, 2013. "I think the hanging was both wrong & badly handled. Family should have been warned, given a last meeting & body returned," Shashi Tharoor, a Congress MP from Kerala, tweeted on Monday. Tharoor's comments come after five Congress MLAs in Jammu & Kashmir admitted in a signed statement that Afzal Guru's hanging was a "mistake."

"The demand for clemency for Guru was justified and his mortal remains should be returned to his family. The decision to not allow his family members to meet him one last time was also a mistake," the statement read. Meanwhile, several separatists leaders were detained or put under house arrest and prohibitory orders clamped in the city in the wake of protests called by them on the second anniversary of Afzal Guru's execution. Supporters of the Awami Ittihaad Party (AIP) shout slogans during a protest in Srinagar on February 9. Curfew-like restrictions were imposed in Safakadal, Maharaj Gunj, Khanyar, Rainawari and Nowhatta police station areas in the old city and Maisuma police station area in the commercial hub of Lal Chowk.

Source: http://timesofindia.indiatimes.com/india/Afzal-Gurus-hanging-wrong-Shashi-Tharoor-tweets/articleshow/46174764.cms [last accessed 09.02.2015]

Politics Stalks India's Death Row

FEB. 27, 2014 Contributing Op-Ed Writer By NILANJANA S. ROY NEW DELHI

Backlog is up there next to corruption in the pantheon of small deities who rule the lives of Indians. 

In 2012 there were, according to the National Crime Records Bureau, 414 convicts on death row in jails across the country. The wait for the noose can be very long, as legal appeals and petitions for clemency travel through the courts to the president and back. The wait can be so long, in fact, that on Feb. 18, the Supreme Court commuted to life terms the death sentences of three of the seven men convicted of assassinating Prime Minister Rajiv Gandhi in 1991. The petitions for clemency they sent to the president in 2000 had been lying in some bureaucrat’s desk drawer all this time. 

The judges ruled that the delay was unjustified and therefore cruel. The case might have remained a simple matter of law if the chief minister of Tamil Nadu, J. Jayalalithaa, hadn’t sensed a political opportunity in the midst of pre-election season. Ms. Jayalalithaa, who is of the A.I.A.D.M.K. party, promptly announced that her government interpreted the judgment to mean it could release all seven of the men convicted for the assassination, who are currently incarcerated in Tamil Nadu. Days after that, the Supreme Court issued a restraining order against the state government. Rahul Gandhi, Rajiv’s son and the vice president of the Indian National Congress party, said he was saddened that his father’s killers might be released. The party called the decision “irresponsible.” 

The convicts — who killed 14 people in addition to Rajiv that day — are widely assumed to be members of the Tamil Tigers, a rebel group that resents the role of India in Sri Lanka’s long civil war, and Ms. Jayalalithaa’s position has considerable support among the movement’s many supporters in her state. Even if the Law and Justice Ministry or the judiciary eventually overturns her government’s decision, she will already have scored with constituents. Once again, politics is overshadowing principles. The questions surrounding the fair treatment of Rajiv’s murderers was an opportunity for India to hold a comprehensive discussion on capital punishment. That debate has grown urgent since the resumption of executions in 2012 — there had been just two since 1995 — and rising calls for imposing the death penalty in cases of rape, murder or terrorism. 

Between 2001 and 2011, while death sentences were handed down to 1,455 people, the death sentences of 4,321 convicts were commuted to life terms, according to the Asian Center for Human Rights, citing official statistics. The courts displayed leniency for various reasons, including concern over inordinate procedural delays and new doubts about evidence because of shoddy forensics. Indian presidents have the power to grant clemency — and during the 1990s and 2000s exercised it not infrequently. Then suddenly the pattern broke and the rhythm of executions accelerated. In 2012, according to the National Crime Records Bureau, 97 prisoners were sentenced to death, whereas the capital sentences of only 61 inmates were commuted. 

In November 2012, Ajmal Kasab was hanged for participating in the Mumbai terror attacks of 2008. Last year, Afzal Guru was executed for being a conspirator in the 2001 attack on Parliament in New Delhi. Pranab Mukherjee, who has been president since mid-2012, has been disinclined to grant mercy. State officials and politicians are eager to appear responsive to threats of terrorism and crime. The media seem to promote quick fixes. It takes just one or two hangings for the public to start looking at the scaffold as a solution. Barely a month after Mr. Kasab’s execution, protesters went into the streets decrying the gang rape and subsequent death of Jyoti Singh Pandey, many carrying placards demanding the execution of her aggressors. 

One of those signs lodged in my memory: It was a hand-drawn sketch of men hanging from gallows by the neck, done in black and yellow markers by a child of nine and carried around by his mother. When most of the rapists were sentenced to death, crowds celebrated. Calls for sanctioning rapes, especially, with death sentences have since multiplied. This is troublesome. Putting aside the question of whether capital punishment is moral, this growing sentiment seems to suggest that rape is the worst crime women can suffer. Rarely are there calls for sentencing to death the perpetrators of witch burnings, dowry killings (murders of women whose families don’t offer enough money to their prospective spouses) or lethal acid attacks on women. A.P. Shah, a former chief justice of the Delhi High Court, has called for discussing whether capital punishment penalizes the poor, minorities or underprivileged castes, and whether in the absence of reliable forensic labs and trained experts, death sentences really are based on sound evidence. “Here one hardly finds a rich or affluent person going to the gallows,” Mr. Shah told Amnesty International last year. 

Every execution, every appeal for clemency, every commuted death sentence is an occasion to reopen the debate over capital punishment. But elections are approaching, and India will pass up its latest chance. This is not what our founders had intended. In 1949, the Constituent Assembly of the then-fledgling country first discussed whether to maintain the death penalty, which India had inherited from its British colonial overseers. Shibban Lal Saksena, a member of Parliament and a former political prisoner under the Raj, made a moving interjection drawing from his personal experience. Of being jailed alongside death row inmates, he said, “I had the misfortune during the 1942 movement to live in a condemned cell for about 26 months and about 37 men were hanged in my presence.” He made a case against capital punishment. 

The Constituent Assembly demurred, leaving it to future Parliaments to decide what to do. But no Parliament has tackled the death penalty with any rigor, leaving the practice in place while the justifications for it still go undiscussed. Whether it’s a chief minister who wants to release convicts whose views are popular with her constituents or a central government that wheels out the gallows to appease the public’s call for executing rapists and terrorists, the problem is the same: Political maneuvering is preventing India from holding a principled debate about when and how the state should kill its own people. 

Nilanjana S. Roy is an essayist and critic, and author of the novel “The Wildings.” 

Source: http://www.nytimes.com/2014/02/28/opinion/politics-stalks-indias-death-row.html?hpw&rref=opinion&_r=0 [accessed 24 April 2014]

Ajmal Kasab's mercy plea will be processed fast: Shinde

NEW DELHI: With a presidential pardon the only option before Lashkar-e-Taiba terrorist Ajmal Kasab after the Supreme Court upheld his death sentence, home minister Sushil Kumar Shinde on Wednesday said the government would ensure that the Pakistani's mercy plea, if it came, was processed in the minimum possible time. "If Ajmal Kasab files mercy plea, we will ensure that it is disposed of in minimum time," Shinde said when asked whether Kasab's execution would take time since he has the option of moving a mercy petition. The delay in disposing of mercy petitions of death row convicts has created unease within and outside the government. At present, 11 mercy petitions, including that of Parliament attack convict Afzal Guru, are pending with the President. Guru had filed his mercy plea in 2006. It took the government over five years to process his file before sending it to the President. Though the government gave its opinion rejecting Guru's mercy plea to the President over a year ago, it is still pending with the President's secretariat. It is the discretion of the President when to take a final call over the matter as the Constitution does not provide any time-limit to dispose it of. Home secretary R K Singh said Kasab has not yet filed any mercy petition. "We will see once he does," he said. Information and broadcasting minister Ambika Soni appeared more straightforward on the issue. She said while it was Kasab's constitutional right to seek a presidential review, such clemency should not be shown. "This was an awaited judgment by Supreme Court. I think the judgment should be abided by... Personally, I think there should be no clemency for such cases," she said. Source: The times of India TNN | Aug 30, 2012, 03.05AM IST http://timesofindia.indiatimes.com/india/Ajmal-Kasabs-mercy-plea-will-be-processed-fast-Shinde/articleshow/15969385.cms [accessed on 30th August 2012]

Final hearing of death-row convict's petition on Thursday

J. Venkatesan: NEW DELHI, February 8, 2012

Mercy petition turned down by President after a delay of 12 years

The Supreme Court on Tuesday posted for final hearing on Thursday a Special Leave Petition filed by death-row convict Mahendra Nath Das, whose mercy petition was rejected by the President after an inordinate delay of 12 years and plea for commutation to life imprisonment on this ground was dismissed by the Gauhati High Court.

A Bench of Justices A.K. Patnaik and Justice Swatanter Kumar, without passing any order on his petition seeking stay on execution of death sentence, posted the main SLP, against the High Court order dated January 30, for final hearing on February 9.

Das, in his writ petition, had contended that the delay in deciding his mercy petition by the President and finally giving the assent for the death sentence had resulted in excruciating agony and trauma for almost 12 years for no explainable reasons and this was a valid ground for awarding life sentence.

On Tuesday, it was submitted by senior counsel Shyam Divan, along with counsel Vrinda Grover, that a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya had already listed for final hearing on February 22 the appeals filed by Devendar Pal Singh Bhullar and other connected matters relating to delay in deciding clemency petitions and that the appeal filed by Das be also listed before the same Bench.

However, the Bench said it would hear the matter and issued notice to Solicitor-General Rohinton Nariman and the State of Assam and posted it for final hearing on February 9, when it is expected to take a decision to stay his execution or not.

The last execution the country witnessed was that of Dhananjay Chatterjee in 2004.

In December last, a Bench headed by Justice Singhvi in its order had said: “A perusal of the list enclosed with the information made available by the President's Secretariat on June 2, 2011 shows that as many as 17 mercy petitions were processed. Keeping in view the importance of the issue arising in the writ petition and the fact that a large number of other persons may not be, due to sheer ignorance, able to file petition under Articles 72 or 161 of the Constitution or move the Court as has been done by the petitioner in this case, we request senior counsels Ram Jethmalani and T.R. Andhyarujina of this Court to assist us as amicus curiae.”

The Bench asked the Additional Solicitor-General to place before the Court a compilation containing details of mercy petitions received by the Government of India and the governments of different States and their status as on the date of preparation of the compilation.

The Bench said that the copies of the compilation should be made available to counsel assisting Mr. Jethmalani and Mr. Andhyarujina.

The case of the prosecution was that on April 24, 1996, Mahendra Das beheaded Harakanta Das at Fancy Bazaar and surrendered with the victim's head. He was arrested and put in jail in 1997 after the sessions court ordered his execution.

The Gauhati High Court and Supreme Court upheld capital punishment in 1998 and 1999 respectively. Subsequently, Mahendra Das' family moved a mercy petition to the then President K. R Narayanan in 1999. The plea was finally turned down in May 2011 by President Pratibha Devisingh Patil, setting the stage for his hanging. The High Court, on September 8, 2011, dismissed a writ petition filed by the convict's mother, Kusumbala Das, for commuting her son's death sentence to life imprisonment, holding that she had no locus standi to file it on behalf of her son. Then, Mahendra Das filed a writ petition pleading for commuting the death sentence to life imprisonment since he had already spent about 14 years in jail during the disposal of his petition seeking presidential clemency.

There had been protests against the death sentence of Mahendra Das. Even Amnesty International expressed concern over his imminent execution.

Source: http://www.thehindu.com/news/national/article2869581.ece
accessed on 10th February 2012