Repeated Mercy Pleas Frustrate Legal Principle; Centre to SC

Published: 22nd July 2015 09:27 PM | Last Updated: 22nd July 2015 10:11 PM

Solicitor General (SG) Ranjit Kumar, appearing for the Centre, said, "Repeated filing of mercy pleas frustrate the principle of finality".

By PTI

NEW DELHI: Repeated mercy pleas before the President and the Governor by convicts seeking remission or commutation of their sentences violate the principle of finality, the Centre today told the Supreme Court. A five-judge Constitution bench headed by Chief Justice H L Dattu, hearing Centre's plea opposing Tamil Nadu's decision to remit the life sentences and set free seven convicts in the Rajiv Gandhi assassination case, also posed various queries on powers of Union and the state in granting remission. Solicitor General (SG) Ranjit Kumar, appearing for the Centre, said, "Repeated filing of mercy pleas frustrate the principle of finality". During the day-long hearing, the bench, also comprising Justices F M I Kalifulla, Pinaki Chandra Ghosh, Abhay Manohar Sapre and U U Lalit, asked as to whether a convict can approach the Governor with his mercy plea even after its rejection by the President. It sought the SG's response on the issue, wondering whether the President's auhority would be undermined, if the Governor allows a mercy plea subsequent to its rejection by the former.

Solicitor General (SG) Ranjit Kumar (file photo)

The bench, which referred to the case of Yakub Memon without naming him, asked the SG to take instruction as to whether any procedure is in place to deal with the mercy pleas or there was need to make a fresh law. The Solicitor General, on his part, said the Governor can decide the mercy plea of death row convicts even it had been by the President provided there is a "change in circumstances". He, however, added that the convict cannot be granted remission under the CrPC after constitutional authorities like the President and the Governor have rejected the mercy plea. "Do you mean to say that power once exercised stands exhausted?" the bench asked, adding, "why can't the state government can take a decision?"

The issue is as to whether the re-consideration of mercy pleas by the executive defies the legislative and constitutional scheme, the SG said. The Solicitor General also said the states cannot decide the mercy pleas of persons convicted under central laws like Foreigners Act and the Passport Act in cases probed and prosecuted by a central agency like the CBI. "Here is the dichotomy. If the conviction is under the state laws (like MCOCA), then the Governor has the power to commute the death penalty or any other penalty," he said. During the hearing, the bench referred to the new penal laws on rape and asked the SG as to why it specifies that the life term would mean "remainder of life of convict".

Referring to various apex court decisions, the SG said it had been done keeping in mind the growing number of offences against women and the fact that often states remit sentences of convicts using "legally unsound principles". The arguments remained inconclusive and the Solicitor General would resume his submissions tomorrow. Earlier, the Centre had asserted that the killers of former Prime Minister Rajiv Gandhi did nor deserve any mercy as the assassination was the result of a conspiracy involving foreign nationals. "Our former Prime Minister was killed by these people. There was a conspiracy to kill him in which foreign nationals were also involved. What mercy is to be seen or shown? This is to be looked by you (apex court). "Their mercy plea was rejected by the President and also by the Governor (of Tamil Nadu). So what mercy is being argued?" the Solicitor General had said.

Among seven convicts, V Sriharan alias Murugan, Santhan, Robert Pious and Jaya Kumar were Sri Lankan nationals while female convict Nalini, Ravichandran and Arivu are Indians. The bench is hearing the maintainability of the Centre's petition opposing Tamil Nadu government's decision to remit the life sentences and release seven convicts in Rajiv Gandhi assassination case. The issue of mercy was raised by senior advocate Ram Jethmalani, who while appearing for Murugan traced the history of judicial proceedings. Earlier, the court, on the plea of the erstwhile UPA government, had stayed Tamil Nadu's government's decision. It had framed seven questions to be decided by a Constitution bench on the scope of the executive's power of remission.

Earlier, senior advocate Ram Jethmalani and Tamil Nadu government's senior counsel Rakesh Dwivedi had questioned the maintainability of the Centre's petition, saying Article 32 cannot be invoked by the Centre as it did not concern any violation of the fundamental rights. The apex court had on February 20 last year stayed the state government's decision to release three convicts Murugan, Santhan and Arivu whose death sentence was commuted to life term by it two days before. It had later also stayed the release of four other convicts Nalini, Robert Pious, Jayakumar and Ravichandran, saying there were procedural lapses on the part of the state government. Santhan, Murugan and Arivu are currently lodged in the Central Prison, Vellore. The other four are also undergoing life sentence for their role in Gandhi's assassination on May 21, 1991 in Sriperumbudur.

"The issue of such a nature has been raised for the first time in this Court, which has wide ramification in determining the scope of application of power of remission by the executives, both the Centre and the State. "Accordingly, we refer this matter to the Constitution Bench to decide the issue pertaining to whether once power of remission under Article 72(by the President) or 161 (by Governor)or by this Court exercising Constitutional power under Article 32 is exercised, is there any scope for further consideration for remission by the executive," the apex court had said while referring the matter to the Constitution bench. It had said the Constitution bench would decide whether the sentence of a prisoner, whose death penalty has been commuted to life, can be remitted by the government.

Such a bench would also decide whether life imprisonment meant jail term for rest of the life or a convict has a right to claim remission, it had said. Another issue for the Constitution bench to decide would be whether a special category of sentence may be made for cases where death penalty might be substituted by imprisonment for life or imprisonment for a term in excess of 14 years and to put that category beyond application of remission. It will also decide whether the Union of India or the State has primacy over the subject matter enlisted in concurrent list of the Seventh Schedule of the Constitution for exercise of power of remission.

Source: http://www.newindianexpress.com/nation/2015/jul/22/Repeated-Mercy-Pleas-Frustrate-Legal-Principle-Centre-to-SC-789980.html (Accessed on 18 December 2018)

How the President decides matters of life and death

Written by Maneesh Chhibber |Updated: July 29, 2015 6:14:13 pm

maneesh.chhibber@expressindia.com

If Yakub Memon is hanged on July 30, he will be the third death row convict to be executed following the rejection of their clemency pleas by President Pranab Mukherjee. Since he became President in 2012, Mukherjee has turned down mercy pleas in at least 24 cases. Under Article 72 of the Constitution, the President can grant pardon, and suspend, remit or commute a sentence of death. However, the President does not exercise this power on this own — he has to act on the advice of the Council of Ministers. This too has been made clear by the Constitution.

In October last year, Yakub applied for presidential pardon after which a report from the state government was sought by the MHA. (PTI)

Under the existing rules of procedure governing mercy petitions, the view of the Union Ministry of Home Affairs (MHA), conveyed to the President in writing, is taken as the view of the Cabinet, and the President decides a mercy petition accordingly. Once a convict has been finally awarded the death sentence by the Supreme Court, anybody, including a foreign national, can send a mercy petition with regard to that person to the President’s Office or the MHA. A mercy plea can also be sent to the Governor of the state concerned, who then forwards it to the MHA for further action.

The convict can file a mercy plea from prison through officials, his lawyer or family. These days, mercy petitions can also be emailed to the MHA or President’s Secretariat. A few years ago, the Union Ministry of Law told the MHA that the President’s power to grant pardons, reprieves, respites or remissions of punishment under Article 72 was “absolute and cannot be fettered by any statutory provisions” under the Code of Criminal Procedure or prison rules. The then Law Secretary, T K Vishwanathan, also said that while commuting the death sentence, the President could direct that the convict would remain in prison for the whole of his natural life, and not be released after remission of the term. Vishwanathan clarified that life imprisonment meant “imprisonment for the whole of the remaining period of the convicted person’s natural life, and not 14 years in prison”.

Different Presidents have dealt with mercy petitions differently. Since there is no fixed timeframe for disposing of a mercy petition, both the MHA and President have sometimes sat on cases for years. Thus, at the end of his five-year term, APJ Abdul Kalam left behind over two dozen mercy pleas, having decided only two — rejecting the plea of rape-cum-murder convict Dhananjoy Chatterjee (2004), and commuting the death sentence of Kheraj Ram into life imprisonment (2006). Kalam’s predecessor, K R Narayanan, was tardier, and failed to decide a single mercy petition during his 1997-2002 term.

MHA data show that Presidents, with the exceptions of Narayanan and Pratibha Patil, have dealt with mercy petitions largely without mercy. According to information released by the government under the RTI Act, of the 77 mercy pleas decided by Presidents between 1991 and 2010, 69 were rejected. Only 8 — about 10% — of those who sought mercy were spared the gallows. R Venkataraman (1987-1992) rejected 44 mercy pleas, the most by any President. During her 2007-2012 term, Patil, the country’s first woman President, accepted the mercy pleas of 30 death row convicts — pardoning, among others, Piara Singh, Sarabjit Singh, Gurdev Singh and Satnam Singh, who killed 17 members of a family at a wedding; Govindasamy, who murdered five relatives in their sleep; and Dharmender Singh and Narendra Yadav, who killed an entire family of five, including a 15-year-old girl, whom Yadav had tried to rape, and her 10-year-old brother, whom they burnt alive.

Several Presidents have allowed their personal convictions — views against the death penalty or religious beliefs — to come in the way of their taking swift action on pending mercy petitions. Central governments have been accused of being guided by political considerations in making recommendations on mercy pleas to the President. The MHA has sometimes jumped the queue in sending mercy petitions to the President — the most recent case being that of 26/11 terrorist Ajmal Kasab, who was hanged in November 2012. The Ministry has on occasion also changed its recommendation — from rejecting a mercy petition to favouring its acceptance. On the issue of delay in deciding mercy pleas, the Supreme Court in a landmark judgment last year held that the death sentence of a condemned prisoner can be commuted to life imprisonment on the ground of delay on the part of the government in deciding the mercy plea.

Source: https://indianexpress.com/article/india/india-others/how-the-president-decides-matters-of-life-and-death/ (Accessed on 18 December 2018)

SG tells SC death penalty constitution bench: No further mercy pleas after President's rejection

By IANS Thursday, 23 July 2015 12:40 Bar, Bench & Litigation

The Centre on Wednesday told the Supreme Court that after a mercy petition by a death row convict is rejected by the President, it cannot be moved afresh before the governor of a state unless there were entirely new grounds. Telling this to the Constitution bench comprising Chief Justice HL Dattu, Justice Fakkir Mohamed Ibrahim Kalifulla, Justice Pinaki Chandra Ghose and Justice Abhay Manohar Sapre, Solicitor General Ranjit Kumar said that unless this was halted at some point, the President’s decision to reject a mercy petition would not attain finality.

Describing the law as “unsound”, the Solicitor General told the court that a death row convict may move the governor on fresh grounds but it will not be backed by law. The Solicitor General made the submission after he was asked whether a death row convict could seek mercy from the governor for the second time. The question raised by the bench assumes significance in the wake of a fresh mercy petition filed by 1993 Mumbai bomb blast death row convict Yakub Memon before the Maharashtra governor after his curative petition was rejected by the apex court on Tuesday.

Finding some ambiguity in the procedure, the court asked the Solicitor General if it should lay guidelines in this regard or was there a procedure formulated by the home ministry. The Solicitor General said that after the executive actions - the President or governor deciding on a mercy petition - and the apex court deciding the matter and commuting the death sentence, there should be no further question of remission of sentence of the convict. The bench was hearing a reference by a three-judge bench on the question whether after the commutation of death sentence into life imprisonment, the state government could further grant remission of sentence to release the assassins of former prime minister Rajiv Gandhi.

One of the seven questions framed by the bench of then chief justice P Sathasivam, Justice Ranjan Gogoi and Justice NV Ramana in their April 25, 2014, judgment was whether after commutation of the death sentence, the government can go further granting them remission and releasing them. The question was rooted in the conflicting positions taken by the Centre and the Tamil Nadu governments on whether Rajiv Gandhi’s assassins or similarly placed convicts be granted remission and consequent release. The Constitution bench was further asked to examine whether there could be a special category wherein after death penalty has been commuted, such a convict is put beyond the applicability of remission of sentence and he would remain behind bars in excess of a life term of 14 years.

Source: https://www.legallyindia.com/Bar-Bench-Litigation/sg-tells-sc-death-penalty-constitution-bench-no-further-mercy-pleas-after-president-s-rejection (Accessed on 18 December 2018)

Trial courts give death freely, but just 5% confirmed

NEW DELHI:, JULY 20, 2015 02:04 IST

Rukmini S. 

Of 1,790 death sentences, 1,512 were decided by the High Courts, while the remaining were either awaiting decision or had been sent for retrials.

Just five per cent of the 1,790 death sentences handed down by trial courts in the last 15 years have been confirmed by the Supreme Court. The numbers point to wanton sentencing by the lower courts resulting in decades wasted on death row, say experts. The Centre on the Death Penalty at the National Law University, Delhi, wrote to all High Courts in the country seeking details of all death sentences handed down by trial courts in their jurisdictions over the last 15 years. All death sentences handed down by trial courts, except in terrorism cases, must go to High Court for confirmation. Madhya Pradesh was the only state which did not respond, which the Calcutta High Court’s data had so much missing information that it could not be used.

1,512 sentences were decided by the High Courts, while the remaining were either awaiting decision or had been sent for retrials. In over a quarter of these cases, the High Courts acquitted persons who had been not just convicted, but also given death sentences by the trial courts. Another half of all cases resulted in commutations. In all, less then 15 per cent of cases were confirmed by the High Courts. Bihar had the highest rate of High Court acquittals. Of the cases that went to the Supreme Court (186 cases), 10 per cent resulted in acquittals, while 60 per cent resulted in commutations.

In all, just 59 cases of the original 1,790 — or fewer than five per cent — were confirmed by the Supreme Court. In all, a third of death sentences given by trial courts resulted in acquittals at a later stage.

“Thirty per cent of death sentences handed down by trial courts result in acquittals. Can we trust a justice system to hand out death sentences when the outcome swings like this from one extreme to another?” asked Dr. Yug Mohit Chaudhry, senior advocate, who has represented death row prisoners and who strongly opposes the death penalty. “This goes to show that trial courts are handing out death sentences in cases which do not call for it and inflicting brutal and undeserved mental agony,” he added.

‘Unnecessary order’

“It clearly shows that death penalty is unnecessarily imposed. Much of the discussion is focused on the Supreme Court but I do believe that these numbers point towards a full blown crisis in the trial courts. It is time we focussed on the manner in which the trial courts are administering death penalty,” Anup Surendranath, Director, Centre on the Death Penalty at NLU Delhi, said. Most of the people currently on death row in India are there on murder charges. As part of the Death Penalty Project at NLU Delhi, which interviewed 385 death row inmates between June 2013 and January 2015, the largest proportion of prisoners were sentenced to death for murder, and 25% of these prisoners were sentenced to death for the commission of a single murder, Mr. Surendranath said. The majority of death row inmates are poor.

In addition, 23 persons were sentenced to death under the Terrorism and Disruptive Activities (Prevention) Act. For such cases, the Supreme Court is the only court of redressal; only six such sentences were confirmed by the SC. For six others, the Supreme Court enhanced the sentence to death.

Source: https://www.thehindu.com/data/trial-courts-too-liberal-with-death-sentences/article7441177.ece (Accessed on 18 December 2018)

UPDATED: 

India: Halt Pending Execution

July 21, 2015 7:26AM EDT

Human Rights Watch

Commute Sentence of Yakub Memon, Renew Death Penalty Moratorium

(London) – The Indian government should halt the execution of Yakub Memon, set for July 30, 2015, Human Rights Watch said today. On July 21, India’s Supreme Court rejected Memon’s final appeal, clearing the path for his execution. Memon was sentenced to death in July 2007 for his involvement in a series of bombings in Mumbai in 1993 that killed 257 people and injured over 700 others. Memon’s older brother, Tiger Memon, is alleged to have been the mastermind behind the bombings and remains at large. The government should impose an official moratorium on capital punishment. An unofficial moratorium ended in 2012. “The Indian government has hanged two people over the past three years while other countries are increasingly rejecting this inhumane practice,” said Meenakshi Ganguly, South Asia director. “The government should commute Yakub Memon’s sentence and put a moratorium on executions until the practice is fully abolished.”

A specially designated court convicted Memon under the Terrorist and Disruptive Activities (Prevention) Act (TADA), which was not renewed because it violated basic human rights. Higher courts subsequently rejected Memon’s appeals, even as the Supreme Court in March 2013 commuted the death sentence of 10 others accused in this case to life. President Pranab Mukherjee rejected Memon’s mercy petition in May 2014. India ended its eight-year unofficial moratorium on executions with the hangings on November 21, 2012, of Mohammad Ajmal Kasab, a Pakistani convicted of multiple murders in the November 2008 attacks in Mumbai, and on February 9, 2013, of Mohammad Afzal Guru, convicted for the December 2001 attack on the Indian parliament. President Mukherjee has rejected 24 clemency pleas since he took office in July 2012, confirming the death penalty for over 30 people.

In December 2014, India was one of only 38 countries to vote against the United Nations General Assembly resolution for a global moratorium on the use of the death penalty. The resolution passed with 117 votes, reflecting a growing trend globally toward the abolition of capital punishment. The Supreme Court in Bachan Singh v. State of Punjab in 1980 held that the death penalty should be imposed only in the “rarest of rare” cases after weighing both the aggravating and mitigating circumstances of a particular case. In July 2012, 14 retired Supreme Court and High Court judges asked Mukherjee to commute the death sentences of 13 inmates that were erroneously upheld by the Supreme Court over the previous nine years. This followed the court’s admission that some of these death sentences were rendered per incuriam – ignoring a contradictory statute or binding judgment. In November 2012, the Supreme Court ruled that the “rarest of rare” standard for capital punishment had not been applied uniformly over the years and the norms on the death penalty needed “a fresh look.”

In a landmark judgment in January 2014, the Supreme Court commuted the death sentences of 15 people on the grounds that there was a delay in the disposal of their mercy petitions by the president. The court also ruled that those suffering from mental illness cannot be executed. The ruling noted that “undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture,” and was a ground for commutation of sentence. The courts have recognized that the death penalty has been imposed disproportionately and in a discriminatory manner against disadvantaged groups in India. A. P. Shah, chairman of India’s Law Commission and a former chief justice of the Delhi High Court, has said: “It is usually the poor and downtrodden who are subject to death penalty.” The Law Commission, which is currently examining the issue, stated that it appeared that “the judiciary and the executive are treating the life of convicts convicted of an offence punishable with death with different standards,” and the executive’s standards for granting commutation were not known. As part of the Law Commission consultations, several prominent politicians have called for the abolition of capital punishment.

Human Rights Watch opposes the death penalty in all circumstances as an inherently irreversible, inhumane punishment. “In India and elsewhere the death penalty fails to act as a deterrent, and is riddled with inconsistency and discrimination,” Ganguly said. “It’s time India removes capital punishment from its statute books.”

Source: https://www.hrw.org/news/2015/07/21/india-halt-pending-execution# (Accessed on 18 December 2018)

Kasargod: Safiya murder case - Prime convict sentenced to death (Kerala)

Stephan Kayyar
Daijiworld Media Network - Kasargod

Kasargod, Jul 16: K C Hamza, the prime accused in the sensational Safiya murder case that took place in 2006 has been awarded death penalty.

Safiya

The quantum of punishment was pronounced by the district principal sessions court on Thursday July 16. Hamza has also been awarded three years of rigorous imprisonment and slapped with a penalty of Rs 10 lac, out of which Rs 8 lac would go to the victim's parents. K C Hamza (52), a resident of Muliyar Mastikunda, his wife Maimoona (48), M Abdulla (48), a resident of Arikkady, Kumble, were found guilty of murdering 14-year-old Safiya in December 2006. The second accused in the case Moidu Haji and fifth accused Adoor police ASI Gopalkrishna were aquitted for lack of evidence.

Hamza, Maimoona and Abdulla

Among the other convicts, Maimoona has been sentenced to 6 years of imprisonment in two cases, while Abdulla, who is Maimoona's elder brother, has been awarded three years of rigorous imprisonment. Both of them have been asked to pay Rs 5,000 as penalty. However, Maimoona needs to spend only three out of the six years in jail. Pronouncing the judgement, principal sessions judge Justice M J Shaktidharan said that a man who had murdered a 14-year-old girl so cruelly was dangerous to society and hence deserved death penalty. The murder had taken place in December 2006. Safiya, from Ayyangeri of Madikeri had been hired as a housemaid by Hamza and was working in his flat in Goa. While cooking, boiling gruel had fallen on Safiya, causing her severe burn injuries, but instead of taking her to hospital, Hamza kept her at home, fearing that he would be caught on charges of child labour. To cover up, Hamza chopped Safiya into three pieces while she was still alive and with the help of his wife Maimoona and Abdulla buried the body parts near a dam where Hamza was a contractor.

Hamza

Though Safiya's disappearance came to light in December 2006 itself, it took two years for the murder to come to light, after initial probe by police failed to reveal the truth. Also Adoor ASI Gopalkrishna was suspended on charges of bribery and helping the accused in forging the entry register at the checkpost at the border town of Manjeshwaram to show that Safiya had travelled from Goa with the family in their car, but he was later reinstated due to lack of evidence. There were no witnesses to the case, and the judgement was pronounced purely based on scientific methods and evidences.

Source: https://www.daijiworld.com/news/newsDisplay.aspx?newsID=336313 (Accessed on 18 December 2018)

India Moves to Hang Terrorist Yakub Memon Amid Growing Calls to Abolish Death Penalty

By RISHI IYENGAR

July 16, 2015

Terrorist convict Yakub Memon, sentenced to death eight years ago for his role orchestrating the 1993 Mumbai bombings, will be hanged at the end of the month provided India’s Supreme Court rejects his final curative petition for mercy next week. Memon, found guilty of being the “driving spirit” behind the 13 blasts that claimed more than 250 lives, is tentatively scheduled for execution on July 30, sources from India’s Home Ministry confirmed to the Indian Expressnewspaper. While the death sentences of 10 others convicted of the attacks were commuted to life imprisonment, Memon’s earlier mercy plea to the country’s President Pranab Mukherjee was declined in April, and his new attempt is similarly expected to be rejected.

Mumbai bomb-blast accused Yakub Memon entering the TADA court in Mumbai on Oct. 25, 2007 Hindustan Times/Getty Images

Memon’s hanging, if it takes place, will be the third high-profile terrorist execution in India within the past three years — Ajmal Kasab, one of the perpetrators of the 26/11 Mumbai terrorist attacks, was hanged in November 2012 and Afzal Guru, convicted of planning an attack on India’s parliament in 2001, met a similar fate a few months later. The final decision on Memon’s fate, due to be handed down on July 21, comes as India wrestles with abolishing the death penalty altogether. The South Asian nation’s law commission is preparing a report to be submitted to the Supreme Court on ending capital punishment, with a discussion on its consultation paper regarding the subject resulting in a polarization of opinion.

Former Indian President A.P.J. Abdul Kalam was among the notable voices in favor of scrapping the death penalty, saying that most cases involving a death sentence have a “social and economic bias,” the Times of India reported. Several participants in the consultation, however, said the death penalty can be justified in the “rarest of the rare” cases. A report by Amnesty International places India in the top 10 countries sentencing people to death; more than 60 death sentences were handed down in 2014.

Source: http://time.com/3960231/india-1993-mumbai-blasts-yakub-memon-death-penalty/ (Accessed on 18 December 2018)