India Red Fort: Court stays attacker's death penalty

28 April 2014 Last updated at 08:13 GMT

India's Supreme Court has put on hold the death sentence of Mohammad Arif, a Pakistani man convicted of attacking Delhi's Red Fort in December 2000.

The judges accepted his lawyer's argument that there had been a long delay in deciding his case.

Arif, also known as Ashfaq Arif, was a Lashkar-e-Taiba militant who was convicted in 2005. The Supreme Court confirmed his sentence in 2011. Three people died in the attack on the 17th Century fort, an Indian landmark. Arif's is the latest in a series of high-profile cases in which the Supreme Court has commuted death sentences because those facing execution have spent so long on death row.

In February, the court commuted the death sentences of three men convicted of plotting the 1991 assassination of former prime minister Rajiv Gandhi. And in January, the court had commuted the sentences of 15 death row prisoners to life in jail on the grounds of delay. On Monday, the Supreme Court ordered that a larger "constitution" bench be set up to decide Arif's case.

His lawyer had argued in the court that hanging Arif would be a violation of the constitution since he had already spent more than 13 years in jail. Arif was arrested along with his wife, Rehmana Yousuf Farooqui, four days after the Red Fort attack and found guilty of murder, criminal conspiracy and waging war against India. The trial court convicted him and six others in October 2005. He was sentenced to death, while the others received jail terms of varying lengths.

In September 2007, the high court upheld his conviction, but ordered the release of the others for lack of evidence. The Supreme Court confirmed his death penalty in 2011.

India rarely carries out executions, which are often delayed indefinitely or commuted by the president.

Source: http://www.bbc.com/news/world-asia-india-27184340 [accessed on 2nd May 2014]

HC commutes death penalty of 3

Abhinav Garg,TNN | May 2, 2014, 03.32 AM IST

NEW DELHI: Despite the brutality of the crime committed by them, Delhi high court has commuted the death sentence of three people accused of murder based on their conduct in jail and the possibility of reform. 

A division bench of justices S Muralidhar and Mukta Gupta commuted the death penalty awarded to a man and his relatives for killing the man's wife saying the case did not fall in the "rarest of the rare category" warranting capital punishment. 

"The nominal roll of the three accused shows that their conduct in jail is satisfactory thus far. None of them were previous offenders. More importantly there was no material whatsoever placed by the state before the trial court or this court which would help conclude that the three accused are likely to commit a crime in the future or are incapable of being reformed," the bench noted while reducing the punishment. 

The high court also faulted the trial court for ignoring mitigating circumstances and said the court appears to have taken note essentially of the fact that an innocent, helpless woman has been murdered in a very brutal manner. "The trial court has not analyzed the role of each of the accused and the mitigating factors vis-a-vis each of them," it added saying it is "not persuaded to hold that the crime can be characterized as a 'rarest of rare' case". 

The bench commuted the death sentence of Surender Singh, his brother Narender Singh and their mother Lakhpati Devi. They have been accused of killing Urmila, Surender's wife. Appearing for the prosecution, additional public prosecutor Varun Goswamy had submitted that the murder fell in the category of "rarest of rare" case as a helpless woman was murdered by the three accused in the "most brutal and dastardly manner". 

However, the bench said, "Unless the court is satisfied that there are absolutely no mitigating circumstances and that the case falls under the category of 'rarest of rare', it should not award the death sentence." 

Urmila was murdered by her husband and two relatives on the intervening night of October 15/16, 2007 in front of her three children after she demanded that a piece of land be transferred in her childrens' name.

Source: http://timesofindia.indiatimes.com/City/Delhi/HC-commutes-death-penalty-of-3/articleshow/34504084.cms [accessed 2nd May 2014]

Man gets death sentence in rape and murder case

Press Trust of India  |  Krishnagar (WB)  

April 29, 2014 Last Updated at 19:40 IST

A man was sentenced to death by a Nadia district court for raping and killing a minor girl. 

Additional District Session Judge Parthasarathi Mukhopadhyay yesterday awarded capital punishment to Bimal Sardar (24) and imposed a fine of Rs 2.20 lakh. According to prosecution, the victim girl, a student of class VII, did not return home after completion of her examination on June 10 last year. 

Locals then beat him up and handed him over to the police.

Her almost naked body, with the throat slit, was found in a field the next day by Sardar who informed local people about it. 

The locals, however, got suspicious of Sardar's behaviour and started grilling him. At one point of time, he broke down and confessed that he had raped and killed her. 

Source:http://www.business-standard.com/article/pti-stories/man-gets-death-sentence-in-rape-and-murder-case-114042901266_1.html [accessed on 2nd May 2014]

Indian Supreme Court refuses to release 7 assassins of former PM Rajiv Gandhi

Source:Xinhua Published: 2014-4-25 16:16:12

India's Supreme Court Friday refused to release seven assassins of former Prime Minister Rajiv Gandhi from prison, and referred the case to a five-judge Constitution Bench.

A bench, headed by Chief Justice P. Sathasivam, also framed seven questions to be addressed by the Constitution Bench, including whether after commutation of the death sentence into life in jail, they can be released, and whether the central government or the Tamil Nadu government can do so.

The seven assassins are currently lodged in a jail in the southern state of Tamil Nadu and each has spent more than 20 years in prison.

In February, the Supreme Court had commuted the death sentences of three of the convicts -- Santhan, Murugan and Perarivalan -- who were on death row, citing an inordinate delay in disposing of their mercy petitions by the Indian president.

The other four assassins in the case have been serving life imprisonment.

After the apex court ruling, Tamil Nadu's Chief Minister J. Jayalalithaa had said all the seven would be released, compelling the central government to challenge the order.

"The release of the killers of a former prime minister of India and our great leader, as well as several other innocent Indians, would be contrary to all principles of justice," Indian Prime Minister Manmohan Singh had said in response to Jayalalithaa's announcement.

Rajiv Gandhi, who was India's prime minister from 1984 to 1989, was killed by Dhanu, a Sri Lankan suicide bomber from the now- defunct Tamil Tigers, during an election rally at Sriperumbudur in Tamil Nadu on May 21, 1991.

Some 26 people were convicted in the case in 1998 by a special court which sentenced all of them to death. But, in 1999, the Supreme Court confirmed the death sentences of four -- Murugan, Santhan, Perarivalan and Nalini.

However, Nalini's death sentence was commuted to life in jail, following the intervention of Rajiv Gandhi's widow and ruling Congress chief Sonia Gandhi, as she gave birth to a girl in jail.

Source: http://www.globaltimes.cn/content/856820.shtml#.U2PuGfmSwrU [accessed on 2nd May 2014]]

Sentences show India gets tough on rapists

By Udayan Namboodiri for Khabar South Asia in New Delhi April 15, 2014 

A pair of court rulings in high-profile rape cases sends a strong message that Indians no longer tolerate sexual violence against women.

In a landmark decision, a court in Mumbai on April 4th sentenced three men to death for taking part in separate gang rapes of two women at an abandoned textile mill last year. That same day, a high court in Kerala handed prison sentences to two dozen men acquitted in 2005 of charges in a 1996 multiple rape case. That 16-year old victim was raped at least 41 times over a 40-day period. 

"Times have become hard for rapists in India," Maharashtra State Women's Commission chairperson Sushiben Shah told Khabar South Asia. The Mumbai ruling marked the first case in which repeat offenders received a capital sentence under newly toughened Indian anti-rape laws. The legal changes followed outcry over the December 2012 case of a 23-year-old medical student who died after being gang-raped aboard a New Delhi bus. Four of the woman's six assailants received death sentences, a juvenile received jail time and prior to trial, a sixth alleged assailant was found dead of suspected suicide in his cell.

Now under the Indian Penal Code's revised section 376(e), repeat rapists can face capital punishment.

"There needs to be zero tolerance for such incidents,"Judge Shalini Phansalkar-Joshi said in handing down the sentences in Mumbai, according to AFP. "A loud and clear message needs to be sent to society." The judge sentenced Vijay Jadhav, Kasim Bengali (also known as Mohammad Qasim Shaikh) and Mohammed Salim Ansari to death for their roles in an August 22nd, 2013 gang-rape of a female photojournalist at the abandoned Shakti Mills, and a previous July 31st, 2013 gang-rape of a telephone operator at the same site. They are appealing their sentences.

Four men and a minor all took part in the photojournalist's attack. The fourth, Rehman, received a life sentence. The juvenile is being tried by a special court. Mohammed Ashwaq Sheikh, another man who took part only in the late July gang-rape, also received a life sentence, AFP reported. "This has certainly sent a positive signal even though it is an open question whether capital punishment is desirable in a civilised country," National Commission for Women chairperson Mamta Sharma told Khabar. 

Slow justice for one

Though the victims of the Mumbai gang rapes got swift justice, such was not the case for the then-teen victim of the 1996 case which originated in Suryanelli in Kerala's Idukki District. On April 4th, a three-judge state High Court bench overturned the lower court's 9-year-old acquittal by sentencing main perpetrator Dharmarajan, to life in prison. The panel also sentenced two co-defendants to 10-year terms. The remaining 21 received terms of at least four years each.

"The miscarriage of justice in the Suryanelli case was a blot on the nation's image," Brinda Karat, a former Communist Party of India (Marxist) MP, told Khabar. "Now finally the hapless victims of rape can hope for justice."

Source: http://khabarsouthasia.com/en_GB/articles/apwi/articles/features/2014/04/15/feature-01 [accessed 24 April 2014]

The politics of executions in India

By Bobby Naqvi | Special to Gulf NewsPublished: 17:19 February 24, 2014

 Indian Muslims and people of Guru’s home state of Jammu and Kashmir have accused the Congress government of playing dirty politics by fast-tracking his execution. This allegation has some substance.

 “The 23 years of life in a prison and that too on death row and the solitary isolation has almost snatched everything from us and all we have is life in our body and hope in our heart. Please release my father and get him back to me, you’ll be hailed as saviours.” Priyanka Harithra,Daughter of Nalini and Murugan

 “Guru was killed by the Congress for political gains. They sacrificed him for votes. If after so many years, their sentence could be commuted, what was the hurry in killing him?” Tabassum, Widow of Afzal Guru.

These two statements are a telling commentary on how Indian politicians and governments adopt double standards while dealing with Muslim and non-Muslims sentenced to death by a court of law. The first is from a mercy petition written by Priyanka Harithra, the 22-year-old UK-based daughter of Nalini and Murugan who were awarded death penalty in 1999 for assassinating former prime minister Rajiv Gandhi on May 21, 1991. The mercy petition this week was addressed to Rajiv’s widow Sonia and son Rahul after Supreme Court commuted Murugan’s death sentence over a technicality. Nalini’s death sentence was commuted after she was pardoned by Rajiv’s family members on humanitarian grounds. Harithra pleaded with Sonia and Rahul to release her parents.

Harithra’s mercy plea came after Supreme Court on February 18 commuted death sentence of Rajiv’s killers, including Murugan. While commuting the death sentence, the court cited federal government’s delay in dealing with all the four convicts’ mercy petitions. Soon after this verdict, a regional politician and chief minister of Tamil Nadu, J. Jayalalitha announced her government will release the four convicts, all from Tamil Nadu. Her decision, months before general elections, is seen as an attempt to gain support of Tamil nationalists who sympathise with the assassins and blame Rajiv for sending Indian army troops to crush the Tamil rebellion in Sri Lanka.

The second statement is of the widow of a Muslim, Afzal Guru, who was hanged for his role in the December 2001 Parliament attack. After the court commuted Murugan’s death sentence, Guru’s widow Tabassum questioned why her husband was hanged when Rajiv’s killers who were sentenced way back in 1999 have now been pardoned. Guru was sentenced to death in 2003 and the verdict was upheld by the Supreme Court in 2005. In a secret operation on February 9, 2013, the Congress-led UPA government executed Guru and buried him inside Tihar jail where he was lodged since his arrest. The hanging came as a surprise because Guru was 25th on the list of death convicts and the government deals with mercy petitions from death convicts in a chronological order. Clearly, 43-year-old Guru was treated as a special case for some inexplicable reasons and his hanging and burial was shrouded in secrecy. Moreover, the government failed to inform the family members, Guru’s widow Tabassum received a letter about the hanging two days after TV channels broke the news. Tabassum, who has a 13-year-old son, was also not informed about the rejection of her mercy petition. One year on, Tabassum is still pleading for her husband’s body and belongings.

Impressing Hindu nationalists

Indian Muslims and people of Guru’s home state of Jammu and Kashmir have accused the Congress government of playing dirty politics by fast-tracking Guru’s execution. The hanging, they feel, was an attempt to impress Hindu nationalists and a crude attempt to check the rising graph of right-wing opposition Bharatiya Janata Party which had been demanding swift execution of Guru. This allegation has some substance.

To get a sense of this complex game of politics of death practiced by governments and politicians, it is necessary to go into the background of Guru’s sentencing. Throughout his trial, Guru maintained his innocence and denied he had any role in attacking Parliament in which a dozen people were killed. The Supreme Court, in a controversial, order rejected Guru’s appeal and upheld the death sentence. The order, considered controversial by Muslims and human rights activists, makes an interesting read: “Thus the conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment… The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender.”

Thus, the Supreme Court, while admitting there was no direct evidence to convict Guru, went ahead to uphold his death sentence in order to “satisfy the collective conscience of the society”. Guru’s trial in lower court also failed to prove beyond reasonable doubt that he was indeed involved in the conspiracy to attack parliament. Here is a paragraph from an article written by human rights activist and celebrated author Arundhati Roy a day after Guru was hanged: “The trial in the fast-track court began in May 2002. The world was still convulsed by post 9/11 frenzy. The US government was gloating prematurely over its “victory” in Afghanistan. In the state of Gujarat, the massacre of Muslims by Hindu goon squads, helped along by the police and the state government machinery that had begun in late February, was still going on sporadically. The air was charged with communal hatred. And in the parliament attack case the law was taking its own course. At the most crucial stage of a criminal case, when evidence is presented, when witnesses are cross-examined, when the foundations of the argument are laid, Afzal Guru, locked in a high-security solitary cell, had no lawyer. The court-appointed junior lawyer did not visit his client even once in jail, he did not summon any witnesses in Guru’s defence, and he did not cross-examine the prosecution witnesses. The judge expressed his inability to do anything about the situation.” Like his hanging, the trial was also swift and fast-tracked.

In contrast, Murugan, his wife and two others — all Hindu Tamils — were sentenced to death for killing Rajiv and 14 others in a suicide bombing. Successive governments never showed any haste in deciding on their mercy pleas. This week, 15 years after they were convicted, the Supreme Court commuted the death sentence blaming the government for delay in deciding mercy petitions. In another case, Sikh terrorist Devinder Pal Singh Bhullar was sentenced to death for carrying out a bomb blast in 1993, killing nine. The government rejected his mercy petition in 2011 but is yet to execute him, possibly to avoid a backlash from the Sikh community.

One can speculate that the government dragged its feet on politically sensitive cases of Rajiv killers because the assassins enjoyed sympathy of Tamil Hindus. Guru’s case was handled with ruthless swiftness because he came from Kashmir, a state in conflict with Indian troops. More significantly, hanging of a Muslim terrorist brought cheers from Hindu nationalists and right-wing politicians. After all, the Supreme Court condemned Guru to die in order to satisfy the nation’s conscience and the government could not have denied Indian people a moment of national glory.

Source: http://gulfnews.com/opinions/columnists/the-politics-of-executions-in-india-1.1295186 [accessed 24 April 2014]

The danger in precedents

February 26, 2014 01:33 IST 

Opinion: The Hindu 

It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty The recent judgments of the Supreme Court have shifted the focus back to capital punishment in India. The jurisprudence of death penalty is as inconsistent as it is confounding in most cases. The recent cases have, however, tried to usher in greater clarity in dealing with the death penalty law and its execution. The decision of the Tamil Nadu government to set free the assassins of former Prime Minister Rajiv Gandhi has added another dimension to the debate. In the light of these developments, it is important to take stock of the evolution of capital punishment in India while evaluating the probable ramifications of the Tamil Nadu government’s decision. 

The ‘rarest of rare’ test The ‘rarest of rare’ test was laid down by the Supreme Court in 1980 in the Bachan Singh case. The judgment also made it incumbent on the state to adduce sufficient evidence that there is no scope of reform for the accused in the slightest. Further, an analysis of the aggravating and mitigating circumstances must be made to ascertain if death alone is the most appropriate punishment in a given case. Therefore, the significance of the judgment also lay in seeking to strike a balance between the crime and the criminal in doling out the sentence by the courts. However, as was pointed out by the Court in Santosh Bariyar (2009), many subsequent cases have focused only on the crime while looking away from the criminal while awarding the death penalty. 

The Supreme Court felt in Gurvail Singh (2013) that the time was ripe to develop the legal position to be socially more accommodative, while moving a step away from the “principled stand” as propounded in the Bachan Singh case. Gurvail Singh has been referred to in the Ram Singh case, dealing with the December 16 Delhi gang rape, where the sessions court took note of the exceptional depravity and extreme brutality of the crime which aroused “intense and extreme indignation of society.” The ‘extreme misery’ suffered by the victim and ‘grave impact’ of the crime on the ‘social order’ were stated as the reasons behind the ruling. The result is that there is a tilt towards the crime as compared to the criminal. 

On the other hand, the Supreme Court in the Sushil Sharma case held that death penalty is entirely avoidable given that there are grounds of reform available for the convict. In the case of Shatrughan Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture. However, the case of Devinder Pal Singh Bhullar took the death penalty jurisprudence to another level in ruling that there was a difference in treatment to be meted out to convicts under the Indian Penal Code and those convicted under special terror laws. For the latter, undue delay cannot be a valid ground to commute the death penalty. In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down per incuriam. It is noteworthy as it buttresses the extremely high limit set to achieve the threshold of ‘rarest of rare,’ albeit implicitly. 

From the above discussion on judicial precedents, it is evident that there is great subjectivity involved in deciding what constitutes the gravest of circumstances that could justify the state to take away life. The Tamil Nadu government has decided to set free the convicts in the Rajiv Gandhi assassination, exercising its power under Sections 432 and 435 of the Code of Criminal Procedure, 1973. This assumes further significance as Section 435 mandates consultations with the Union government when the conviction is under central laws. Acknowledgment of the grave injustice in the undue delay in execution by the highest court of the country does not wash away the fact and gravity of their crime that has been proved beyond reasonable doubt. In deciding to release them, the Tamil Nadu government is surely entering a risky territory which may set loose a politically-charged atmosphere and set a dangerous precedent. 

The governments concerned must handle such cases with astute political wisdom and maturity, as it is their responsibility to ensure citizens’ safety. If there is relaxation shown to a criminal convicted of something as deplorable as the assassination of the former Prime Minister, then it begs the question as to what could be an effective deterrent for criminals in the future. This stand puts our internal security at peril, when communal and left wing forces are on the rise, in addition to the sustained terror threats from across the border. Against this backdrop, it is important to consider the cases of Ajmal Kasab and Afzal Guru. Both these cases marked a break in the so-called self-imposed moratorium on death penalty by the Indian judiciary. And both cases involve matters of national security and instances of terrorism. 

This itself proves that accompanied with executive expediency, death penalty has been justified for the perpetrators of grave criminal and terrorist activities — at least till the time that it exists in our legal system. Retention of death penalty A key question to ask at this juncture is whether it is too ambitious to expect a correlation between the crime rate and death penalty in a jurisdiction where the wheels of justice are eternally slow. For us to be able to fairly introspect on the justifiability of the death penalty, a lot rests on the executive promptness in dealing with existing cases. By creating an additional ground for commuting the death sentence solely because of the lack of executive promptness, the Supreme Court may be subtly pushing India into a territory of no capital punishment, but the legislative intent is ostensibly at deviance. 

India voted against the Record of Votes on the U.N. General Assembly Moratorium Resolution, 2012, just as it had in the past. The Human Rights Council recommended in its Universal Periodic Review 2012 that India should establish an official moratorium on execution. While trying to move towards abolishing the death penalty completely, India should also commute all death sentences into life imprisonment terms and ratify the Second Optional Protocol to the ICCPR. Both of these recommendations India did not agree with. There seems to be greater judicial clarity in cases of mandatory death punishments in India. Recently, the Bombay High Court ruled in the India Harm Reduction Network case that the mandatory death penalty for drug offences was “unconstitutional.” However, instances of specific legislations still upholding death penalty still subsist. For example, the Piracy Bill has a provision of death penalty, as does the Narcotic Drugs and Psychotropic Substances Act of 1985. Clearly, the Union Legislature seems decided about retaining capital punishment, at least for the time being. 

Every time a crime captures the national imagination, there is a hue and cry to overhaul the legal system, and bring in place more stringent norms. But what is often not really emphasised is the lax implementation. There is hardly a sustained clamour for a better managed police system of the country. There is no serious effort at a fast-paced judiciary to clear the immense backlog of cases. It is this laidback implementation that is often hidden behind the grandiose idea of ‘rule of law.’ Accountability of public institutions and functionaries needs to be strengthened. It is only when we have a highly efficient and time-bound justice delivery mechanism that we can proceed to judge the merits of death penalty. 

(Abhishek Tripathy is a lawyer.) 

Source: http://www.thehindu.com/opinion/op-ed/the-danger-in-precedents/article5726541.ece [accessed 24 April 2014]