HC seeks Centre’s response on plea for abolishing death penalty (New Delhi)

New Delhi, June 1 (IANS) The Delhi High Court on Friday issued notice to the Centre and others on a plea that sought abolition of the death penalty to those accused of minors’ gang rape.

A bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar listed the matter for July 31. Social Action Forum for Manav Adhikar (SAFMA) had moved the court through advocate Charu Walikhanna, seeking declaration of Sections 5 and 6 of the Criminal Law (Amendment) Ordinance, 2018, (prescribing death sentence for gang rape of children under the age of 12) as void, being in derogation of Articles 14 and 21 of the Constitution.

In the wake of widespread outrage over the gang rape and murder of an 8-year-old girl in Jammu and Kashmir and succumbing to political expediency, the impugned ordinance had been introduced, the plea said. The petitioner claimed that the ordinance was brought without conducting proper research, adding that no prior consultations were held with the Law Commission, National Human Rights Commission and the National Commission for Protection of Child Rights.

The plea said that capital punishment is neither a solution nor deterrence against heinous crime. The petitioner also sought the setting up of a committee headed by a NHRC member to come out with steps to tackle rapes, especially of minor girls, by adopting scientific principles and data.

Source: http://www.canindia.com/hc-seeks-centres-response-on-plea-for-abolishing-death-penalty/ (Accessed 24 December 2018)

HC upholds death penalty for rapist (Uttar Pradesh)

Rajesh Pandey

October 7, 2017, 8:42 IST

ALLAHABAD: Considering it a rarest of rare case, the Allahabad high court on Friday confirmed the death sentence awarded to a 35-year-old man who had raped and murdered a seven-year-old girl after kidnapping her. Dismissing the appeal filed by the convict Pappu of Kushinagar, a bench observed, “The motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a `rarest of rare cases' where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crime."

While confirming the death sentence awarded by additional sessions judge, of Kushinagar at Padrauna on December 8, 2016, the court observed that the records of the case reveal that appellant Pappu is married. Taking an overall view of all the facts and circumstances of the case, the court said that it is of the firm opinion that the sentence of death should be maintained. Mother of the girl had filed an FIR on May 14, 2015, stating that her seven-year-old daughter was kidnapped a day before by Pappu, who brutally raped and murdered her. Some people had witnessed the girl being lured by the accused.

Source:  https://timesofindia.indiatimes.com/city/allahabad/hc-upholds-death-penalty-for-rapist/articleshow/60979956.cms (Accessed 23 December 2018)

Inching away from the hangman

JULY 20, 2017

National Commission for Human Right (NCHR) recently held a conference titled ‘Moving away from Death Penalty in Pakistan’. The issue is least discussed in Pakistan, as the country always favoured death penalty with the exception of a 7-month moratorium. The world is divided in two camps: abolitionist and religionist. There were many common arguments both ways. But the reality is a large number of countries have moved away from death penalty by replacing it with life imprisonment, moratorium or they do not practice it at all.

In 1984, General Assembly passed a resolution specifying strict condition for the countries that have not abolished death penalty. The resolution prohibited the application of death sentence on persons below 18 years of age at the time of the commission of crime, pregnant women, and new mothers or on person who suffer from mental disability. An accused should be given a fair trial and right to appeal or seek pardon. It further said pardon or commutation of sentence may be granted in all cases of capital punishment. The 1984 resolution was a milestone. 37 more countries either abolished or put moratorium on death penalty, increasing the number of countries without death penalty to 190. The list includes a number of OIC countries like Senegal, Tunisia, Morocco, Algeria, Maldives, Azerbaijan, Uzbekistan, Tajikistan, Kazakhstan, Turkmenistan, Brunei, Burkina Faso, Gambia, Mali, and Mauritania Niger. Pakistan and Turkey had put a ban on death penalty which was recently lifted.

Article 6 of the international covenant on civil and politics rights (ICCPR), to which Pakistan is a signatory, states, “Every human being has the inherent right to life. This right shall be protected by law.” It further states, “Nothing in the article shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the present covenant. In 2008, the government of Pakistan had placed a moratorium and stopped execution of prisoners on death row.

Wrongful convictions are a common phenomenon. Even well-functioning legal systems have sentenced to death men and women who were subsequently proved innocent

After a brutal terrorist attack on Army public School Peshawar in December 2014, the voluntarily imposed moratorium was lifted first for terrorism-related cases and then in March 2015, for all capital punishment cases. Although Article 6 (2) of the ICCPR permits application of death penalty, it is restricted to the ‘most serious crimes’, in accordance with ECOSOC (resolution 1984) safe guard. In countries like Pakistan where investigation and evidence gathering are fragile and conditions to fulfill the requisites of justice are non-existent, fair trial cannot be guaranteed. Sometimes the truth of the deceased being innocent never comes to light even decades later. Wrongful convictions are a common phenomenon. Even well-functioning legal systems have sentenced to death men and women who were subsequently proved innocent. 

Recently, in nearly a dozen cases, the Supreme Court acquitted the accused, who had appealed against the high courts, confirmation of their death sentence. The accused had spent 8 to 20 years in prison. Their acquittal was on lack of adequate evidence or collusion between the complaint and the police. Political influence and corruption becomes a major obstacle in dispensation of justice. Even in a country like United States, more then 100 cases of wrongful convictions is a glaring example of erroneous judgement. Human Rights activists believe that it is better to pardon erroneously than to punish erroneously. The killings should not be driven by politics in any case. In 1947, Pakistan set death penalty for 2 offences only, but now it is increased to 27 offences. Since 2014, 416 people were given death penalty and 425 in 2016. Out of 87 people executed last year, only 14 were terrorists. The argument that lifting of moratorium is to combat terrorism does not hold ground.

Eminent lawyer Faisal Siddiqui says that in reviewing jurisprudence, moratorium has no legal basis hence cannot be a permanent solution and that traditional remedies will not work. The constitution of Pakistan is neither secular nor theocratic, but a hybrid. The state policy towards crime is to kill everyone who does not comply, which is why the society is completely traumatised and brutalised. There is a death consensus between state and society. The penal law is therefore militarised. The new phenomenon of ‘mob-violence, to dispense justice is becoming part of our daily lives. Recent killing of Mashal is a case in point. Blasphemy law has been used time and again as a weapon to settle scores. We need to get out of the stagnant situation and review mandatory death penalty in 27 crimes. The list can be curtailed to most serious offences, definition maintainable human rights standards. These procedures have been laid down by various human rights intuitions, international tribunals and officials. The right to be heard fairly in court, to have a legal counsel, no torture to extract confession and adequate evidence are some of the pre-requisites. The state is bound to provide a procedure for reviewing the court decision, and to arrow capital offenders to seek amnesty, pardon or commutation of death sentence. Juvenile offenders and mental disability cases should be treated according to the procedure laid down for them. The death sentence is not applicable to pregnant women or new mothers. These principles reflect profound universal sentiment.

Instead of mandatory capital punishment, judges should be given options for life imprisonment. One more factor which needs our attention is the lack of legal counsel for accused from poor background. Many death convicts are underprivileged and cannot have access to quality legal assistance. There is also an issue with due process of law. In a recent visit to Karachi jail by NCHR delegation, the common complaint from the prisoner was unavailability of competent legal counsel. Many complained the state council does not turn up on hearings. Discrimination on the of basis of financial status, sex, ethnicity or political affiliation is a violation of human rights. In Pakistan, as someone remarked either the prime minister or the poor prisoners are sent to gallows. Former chief justice of India Justice Bhagwati once said, “In India, only the poor get death sentence.” Fair trial means that accused and his lawyer get sufficient facilities and time for their defence. Some countries Like Pakistan and Bangladesh have enacted separate laws for trials of different categories of crimes to combat terrorism. Speedy trials or military courts do not fulfill the criteria of a fire trial. The presumption of innocence is not held in high regard either. It is a common sight to see accused handcuffed, maltreated and in degrading conditions.

In a number of cases, evidence is inadequate and faulty. Our Judicial system does not meet the universally acknowledged human rights standards in awarding capital punishment to offenders of the “most serious crimes.” It needs to be reformed as soon as possible to stop arbitrary arrests, enforced disappearances, torture, and unlawful detention. 

The writer is a member of the National Commission on Human Rights. 

Source: https://dailytimes.com.pk/1271/inching-away-from-the-hangman/ (Accessed 23 December 2018)

Gopal Gandhi justifies effort to save Yakub Memon, says death penalty is wrong

By Express Web Desk |New Delhi |Updated: July 18, 2017 3:55:32 pm

Gopalkrishna Gandhi justified his efforts to save Yakub Memon, a convict in the Mumbai blast case from the gallows and said that the practice of capital punishment was medieval and wrong.

Gopalkrishnan Gandhi

Opposition vice presidential candidate Gopalkrishna Gandhi justified his efforts to save Yakub Memon, a convict in the Mumbai blast case from the gallows. He said that the practice of capital punishment was medieval and wrong. Gandhi faced criticism from the ruling party but said that he takes Mahatma Gandhi and Babasaheb Ambedkar as his inspiration and they were against death penalty and wanted to abolish it. In the presence of former prime minister Manmohan Singh and top Congress leaders Sonia Gandhi and Rahul, Gopalkrishna Gandhi on Tuesday, filed his nomination papers. JD (U)’s Sharad Yadav, CPI(M)’s Sitaram Yechury, CPI’s D Raja, NCP’s Tariq Anwar and Praful Patel, NC’s Farooq Abdullah and DMK’s Kanimozhi were also present.

After filing his nomination papers, Gandhi said, “In our country, we are living in times of division. A whole force which is dividing our country is in action mode and that spells danger.” He said that he supports common people of the country and not any political party and that he would try to bridge the gulf between the public and politics. “People’s faith in politics itself has diminished and has collapsed. I would like to see a revival of that faith,” he said. Responding to the Shiv Sena’s attack on him for petitioning the president to save Memon, Gandhi said, “Shiv Sena is doing its duty with dedication. What Shiv Sena has said, it had to. I feel that the death penalty and capital punishment belong to the medieval ages. Death penalty is wrong and this is my principle.” He also spoke about Kulbhushan Jadhav, who is facing death sentence in Pakistan and said, “As a common, independent citizen, it is my duty to fulfil my principles. I believe in that. I have drawn inspiration on death penalty from two persons – Mahatma Gandhi who was opposed it and Babasaheb Ambedkar, who said it is only proper abolish it”.

The vice presidential election is scheduled to be held on August 5. Gandhi will contest against the NDA’s candidate M Venkaiah Naidu.

Source: https://indianexpress.com/article/india/gopal-gandhi-justifies-effort-to-save-yakub-memon-says-death-penalty-is-wrong-4756231/ (Accessed 23 December 2018)

President Rejects Mercy Petitions Of Five Death-Row Convicts In Two Days (Madhya Pradesh)

BY: LIVE LAW RESEARCH TEAM JUNE 18, 2017 10:31 PM

President Pranab Mukherjee rejected mercy petitions from five death-row convicts, on May 25 and 26. These are perhaps his last disposal of mercy petitions, before his term expires on July 24. 

Pranab Mukharjee, Indian President (2012–2017)

With these, he has rejected mercy petitions of 41 death-row convicts, whereas he has commuted the death sentences of only seven, to life imprisonment. On May 25, he rejected the mercy petitions of Jitendra @ Jeetu, Babu @ Ketan, and Sanni @ Devendra. The Supreme Court dismissed their appeals against their death sentences, confirmed earlier by the High Court of Madhya Pradesh (Indore Bench), on January 6, 2015 in limine, through an order pronounced by the bench of the then Chief Justice H.L. Dattu, and Justices A.K.Sikri and R.K.Agrawal. The order just carried three words: “Delay condoned. Dismissed”. The Supreme Court, while hearing the landmark Shatrughan Chauhan case, had decried the practice of in limine dismissals by the Supreme Court of appeals by death-row convicts. 

According to the Death Penalty India Report Volume 1 published by the National Law University, Delhi, last year, there have been nine in limine dismissals of SLPs filed by the death-row convicts in the Supreme Court since 2004. The bench, which dismissed Jitendra, Babu and Sanni’s SLPs in January 2015 also dismissed in limine, another SLP filed by Babasaheb Maruti Kamble, in the same month. In limine dismissals, because they lack reasoning, are legally indefensible, and the death-row convicts have a fair chance of getting their appeals reheard by the Supreme Court on this ground. Interestingly, the review petition filed by Jitendra @ Jeetu and other convicts, is yet to be heard by a three-Judge bench in open court as mandated by the Supreme Court’s Constitution bench in Mohd. Arif case.

It was last listed before Justice Kurian Joseph in Chambers on October 5, 2015, when he directed that the applicants in the case shall also be heard when the Review Petition is heard in the open Court. In their Judgment, Justices S.K.Seth and P.K.Jaiswal of the Indore Bench of the Madhya Pradesh High Court, (authored by Justice Seth), had held that the accused, by their extremely depraved and demonic acts against an infant of three or four years, hae forfeited the right to be treated softly or lightly. “So long as the death sentence remains on the statute book, it would, in our opinion, be a travesty of justice to award the lesser sentence of life to the accused”, the bench had observed. 

According to the High Court, the prosecution has made out two very important circumstances against the accused. They are the DNA report and the seizure of documents from the spot per seizure Memo. “These two circumstances by themselves in our opinion, build a chain of circumstances leading to the one and only conclusion of the involvement of all the three accused persons before us”, the bench had held. Last rejection The President rejected the mercy pleas of Purushottam Dashrath Borate and Pradeep Yeshwant Kokade, on May 26. Their appeals against the death sentences were dismissed by the Supreme Court’s three-judge bench on May 8, 2015. The judgment was authored by the then Chief Justice, Dattu, on behalf of himself and justices S.A.Bobde and Arun Mishra. The two accused in this case were found guilty of sexually abusing and killing a BPO employee, on her way to work in Pune, in 2007.

The accused were part of a private cab service, hired by the deceased’s employer to pick up employees from their homes, and drop them, after their work shifts were over. The Supreme Court confined the hearing of their appeals to only the issue of sentence. The bench observed that in a case where the accused does not act on provocation or on the spur of the moment, but meticulously executes a deliberate, cold-blooded and pre-planned crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by our criminal jurisprudence would tilt heavily towards the death sentence. The incident, the bench held, shocked and repulsed the collective conscience of the community and the court. As a result, the bench found no mitigating factor in favour of commutation of their death sentences to life imprisonment. 

Whatever the findings of the Courts, the President is expected to apply his mind independently while exercising his powers under Article 72 of the Constitution. Eminent scholar and statesman, Gopalkrishna Gandhi, observed in his book, Abolishing the Death Penalty, (Aleph, 2016) as follows: “The president is bound by the Government’s advice, but the subject –the life and death of an Indian citizen –makes it possible for the President, and I would say incumbent on the President to go into each such case with a magnifying glass. And this not just to spot loopholes of fact, but also to see the crime against the light of circumstances, and contexts that lie beyond purely legal facts and legal interpretations” (pages 47- 48).

Gopalkrishna Gandh, further observed: “Presidential inclinations cannot form the final gradient to the gallows. A mercy petition cannot be at the mercy of one man’s temperament, albeit filtered by governmental advice. That is valuationally abhorrent in a democratic republic governed by the rule of law.” He continues: “In the provisions of Article 72 lie a certain philosophy, inadequately explained, that requires the executive study of a mercy petition to be trans-judicial, but not un-judicious, to be a large canvas but not a tabula rasa for presidential expressionism. No man’s life can be left to the mercy of another man’s discretion. Raisina Hill is not the Purana Qila, nor Rashtrapati Bhavan the Red Fort.” These are indeed strong words.

Source: https://www.livelaw.in/president-rejects-mercy-petitions-five-death-row-convicts-two-days/ (Accessed 23 December 2018)

Man, son get death sentence in double murder case in Uttar Pradesh

May 23, 2017, 05:44 PM IST 

A 60-year-old man and his son were today sentenced to death by the district court for murdering two persons over a land dispute.

District Judge Gokulesh also imposed a fine of Rs 20,000 each on Barik and Shehbad (30). They were charged under sections 302 (murder) and 307 (attempt to murder) of the Indian Penal Code. The court also directed the accused to pay Rs 35,000 to the victim's family. According to prosecution, Barik and his three sons had murdered one Riyasat and his grandson Andaza during an altercation between the two families, on November 9, 2011.

The accused had also injured two others of the same family. The dispute was over a tree that had grown on a piece of land bordering the farms of the two parties, in Badla village in the district. Police had booked Barik and his three sons over the murders. Two of them were declared juvenile and sent to a government observation home in 2014. They were released earlier this year after completing three years at the observation home.

(This article has not been edited by DNA's editorial team and is auto-generated from an agency feed.)

Source: https://www.dnaindia.com/india/report-man-son-get-death-sentence-in-double-murder-case-in-up-2448339 (Accessed 23 December 2018)

Jammu and Kashmir shutdown on Afzal Guru's death anniversary (Kashmir)

Reuters New Delhi, 

Feb 09, 2017, 07.25 AM (IST) 

Separatists on Thursday called for a shutdown in the Indian state of Jammu and Kashmir on the death anniversary of Afzal Guru, who was executed for his involvement in the 2001 parliament attack case.

On December 13, 2001, five gunmen stormed the Indian parliament complex in New Delhi, killing nine people, mostly policemen, before themselves being gunned down. Guru, who was held guilty in the case, was given death sentence by a Delhi court on December 18, 2002, after being convicted of conspiracy to attack parliament and waging war against the country and murder. On Thursday, security was stepped up in Srinagar city to prevent any untoward incident and authorities imposed restrictions in sensitive areas of the volatile province.

Afzal Guru, executed on 9 February 2013

Markets remained shut and vehicles largely stayed off the roads as majority of the residents chose to stay indoors. Guru was convicted of helping organise arms for the gunmen who carried out the attack and a place for them to stay. He always maintained his innocence. President Pranab Mukherjee had rejected a mercy petition from the Kashmiri and he was hanged in Tihar jail in New Delhi on February 9, 2013. India blamed the parliament attack on Pakistan-backed militants, targeting the prime minister, interior minister and legislators in one of the country's worst ever militant attacks.

Pakistan denied any involvement and condemned the attack but tension rose sharply and brought the nuclear-armed rivals dangerously close to their fourth war. Nearly a million soldiers were mobilised on both sides of the border and fears of war only dissipated months later, in June 2002.

Source: https://www.wionews.com/south-asia/india-jammu-and-kashmir-shutdown-on-afzal-gurus-death-anniversary-12202 (Accessed 23 December 2018)

SC stays death penalty of former BSF constable for six months

Published: February 3, 2017 9:19 PM IST

New Delhi, Feb 3 (PTI) The Supreme Court has stayed the death penalty awarded to former BSF head constable Balbir Singh, who was held guilty of murdering two of his senior officers.

A bench comprising Justices Dipak Misra and U U Lalit granted stay of the execution of the death sentence for six months to enable him to challenge the order of the competent authority and also the court martial proceedings. “We permit the respondent to challenge the said order before the appropriate forum in accordance with the law within three months. Needless to say, the respondent (Balbir Singh) will be at liberty to raise all contentions before the appropriate authority. “The execution of the death sentence shall remain stayed for a period of six months. Needless to say, we have granted six months time so that the respondent can file appropriate proceeding before the competent authority and the said authority can address it in accordance with the law. The competent authority, if so advised, can always extend the order of stay.

“Needless to say, as we have not addressed or adverted to the question of law that has been dwelled upon by the Gauhati High Court, the question of law is kept open,” the bench said. Singh, a former BSF head constable, was awarded death sentence by General Security Force Court on March 2, 2007. He was convicted for murdering his superior Deputy Commandant Kameswar Singh for pulling him up for dereliction of duty while posted at Rajnagar outpost in South Tripura district. After killing Kameswar Singh, the convict had also gunned down Assistant Commandant Alok Ranjan as he had witnessed the killing of the other officer.

On January 15, 2016, the Centre had informed the apex court that as a special case, the government has decided to afford an opportunity of hearing to him and pass an order. The apex court was on April 25, 2016, informed by the Centre that Singh has been accorded hearing by the competent authority and an order will be passed accordingly. The Gauhati High Court, treating his letter as a writ petition, had directed the Centre that before execution of the death sentence, he should be given a hearing.

Source: https://www.india.com/news/agencies/sc-stays-death-penalty-of-former-bsf-constable-for-six-months-2-1809532/ (Accessed 23 December 2018)