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#India must commute #deathpenalty of all prisoners at risk of Execution #AbolishDP

World Day against Death Penalty:

 By 
Published: October 10, 2013
 New Delhi, India (October 10, 2013): According to a press statement sent to the Sikh Siyasat News (SSN) by the Amnesty International India [a]t least 23 people in India are at risk of execution. The cases of 18 people on death row, at risk of imminent execution and seeking commutation of their death sentences on grounds including delay in the disposal of their mercy petitions, are scheduled to be heard together by India’s Supreme Court starting 22 October 2013. Another five prisoners, most of whose mercy petitions have been rejected, are also on death row.

The briefing sent to Sikh Siyasat News (SSN) by , Media Officer of the India, presents details of the cases of all prisoners facing execution, and significant factors in each case. The upholding of the death sentence by the Supreme Court in some of these cases was made in judgments that the court later stated were per incuriam, or bad law. The briefing also outlines India’s concerns regarding the Supreme Court’s consideration of delay in ‘terror’ cases, and systemic flaws and secrecy around the use of the death penalty in India.

The use of the in India has been repeatedly acknowledged by Indian courts to be arbitrary, inconsistent, biased and flawed. There is no convincing evidence that capital punishment has a unique deterrent effect on crime, and its use puts India in a minority of countries that continue to execute.

Amnesty International India urges Indian authorities to commute all these death sentences to terms of imprisonment, and impose a moratorium on executions as a step towards ending the death penalty in India.

Amnesty International opposes the death penalty in all cases without exception, regardless of the nature or circumstances of the crime; guilt, innocence or other characteristics of the individual; or the method used by the state to carry out the execution. The death penalty violates the right to life, as proclaimed in the Universal Declaration of Human Rights. It is the ultimate cruel, inhuman and degrading punishment.

Background

Since assuming office in July 2012, President Pranab Mukherjee has rejected the mercy petitions of 20 prisoners and commuted the death sentence of one. This is the most disposals of mercy petitions by a President in nearly 25 years.[1]

In November 2012, the President rejected the mercy petition of Ajmal Kasab, the lone surviving gunman of the 2008 Mumbai attacks. On 21 November 2012, Ajmal Kasab was hanged, marking the resumption of executions in India after a gap of over eight years. Less than three months later, Afzal Guru, convicted of involvement in an attack on the Parliament of India, was executed. These two mercy petitions were unusually considered out of turn, and the executions were not announced to the public or the convicts’ families until after they had been carried out.

In cases involving 18 persons whose mercy petitions have been rejected, including some whose mercy petitions were rejected by the earlier President Pratibha Patil, the judiciary has stayed executions after prisoners sought commutation of their sentences on grounds including delay in the disposal of their mercy petitions.

In July 2013, the Chief Justice of India said that conflicting judgements on mercy petitions by smaller benches had created a need for an authoritative pronouncement. He said that a five-judge ‘constitutional bench’, specially created to hear cases involving important questions of law, would begin hearing 18 cases seeking commutation in October 2013.[2]

Another five prisoners are also on death row. Their executions have been stayed, but they remain at risk.

Details of cases being heard by the Supreme Court

Simon, Gnanaprakasham, Meesekar Madaiah and Bilavendran were convicted in September 2001 by a special court set up under the Terrorist and Disruptive Activities Prevention Act (TADA) for involvement in a land mine blast in 1993 that killed 22 people. The special court sentenced them to life imprisonment, but on appeal their sentences were increased to the death penalty by the Supreme Court in January 2004.

Significant factors: International standards on the death penalty, including the UN Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty, state that anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction. This right is not available when the Supreme Court enhances a sentence of life imprisonment to death, as the revision jurisdiction of the Supreme Court is highly limited.

The Supreme Court itself has rarely exercised the power to enhance sentences of life imprisonment to death. It has described the enhancement of punishment as ‘extraordinary jurisdiction’.[3] In several cases, the Supreme Court has rejected similar enhancements of sentence made by High Courts.[4]

Trials under the TADA did not uphold international fair trial standards; provisions of the TADA were also grossly abused in India to facilitate further human rights violations. The TADA was allowed to lapse in 1995.

Sonia Choudhary and Sanjeev Choudhary were convicted in May 2004 of the murder of eight relatives in August 2001 and sentenced to death. On appeal, the Punjab and Haryana High Court commuted their sentences to life imprisonment in April 2005. However, the Supreme Court increased the sentence to death in February 2007.

Significant factors: International standards on the death penalty, including the UN Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty, state that anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction. This right is not available when the Supreme Court enhances a sentence of life imprisonment to death, as the revision jurisdiction of the Supreme Court is highly limited.

The Supreme Court has rarely exercised the power to increase sentences of life imprisonment to death. It has described the enhancement of punishment as ‘extraordinary jurisdiction’. In several cases, the Supreme Court has rejected similar enhancements of sentence made by High Courts.

Gurmeet Singh was sentenced to death by a court in July 1992 for the murder of thirteen relatives in 1986. The sentence was upheld by the Allahabad High Court in February 1996 and by the Supreme Court in September 2005.

Significant factors: One of the two judges in the High Court who heard the appeal was in favour of acquitting Gurmeet Singh, saying that the evidence against him was insufficient to prove guilt. The case was then referred to a third judge, who upheld the conviction and death sentence. In some cases involving similar non-unanimous rulings, the Supreme Court has commuted death sentences to life imprisonment.[5] The Court has also observed that death sentences need to be approved unanimously to remove ‘the vice of arbitrariness’.[6]

When Gurmeet Singh sought an appeal of his sentence in the Supreme Court, the negligence of officials at the Allahabad High Court led to a delay of seven years in the judicial process. The High Court took disciplinary action against the officials responsible, but the Supreme Court refused to commute the sentence on the ground of delay, stating that it could only consider delays for which executive authorities were responsible.[7]

Shivu and Jadeswamy were sentenced to death by a court in July 2005 for the rape and murder of a woman in 2001. The Karnataka High Court upheld the sentence in November 2005 and the Supreme Court confirmed it in February 2007.

Significant factors: In November 2012, the Supreme Court – in a different case relating to the imposition of the death penalty – observed that in Shivu and Jadeswamy’s case, “the circumstances of the convicts were not considered for reducing the death penalty” – a necessary measure that courts are required to take under the ‘rarest-of-rare’ doctrine in Indian law before sentencing anyone to death.[8]

Murugan, Santhan and Arivu (aka Perarivalan) were sentenced to death in January 1998 by a a special court set up under the Terrorist and Disruptive Activities Prevention Act (TADA) of involvement in the killing of India’s former Prime Minister Rajiv Gandhi and 15 other people in May 1991. In May 1999, the Supreme Court acquitted them of charges under the TADA, but upheld their convictions on other charges including murder, and confirmed their death sentences.

Significant factors: The presiding judge in the three-judge bench of the Supreme Court that confirmed the death sentences told journalists in February 2013 that the judgement was ‘constitutionally incorrect’.[9] He said the judgment had ‘errors’ as the Court had not considered the antecedents, nature and character of the accused. He also said that since the convicted prisoners had already spent over two decades in custody, their execution would amount to giving ‘two punishments for the same crime’, which would violate the Constitution of India.[10]

In August 2011, the legislative assembly of Tamil Nadu state had adopted a resolution recommending commutation of the death sentences.

Trials under the TADA did not uphold international fair trial standards; provisions of the TADA were also grossly abused in India to facilitate further human rights violations. The TADA was allowed to lapse in 1995.

Suresh and Ramji were convicted and sentenced to death by a court in February 1997 for the murder of five relatives in 1996. The sentence was upheld by the Allahabad High Court in February 2000 and by the Supreme Court in March 2001.

Jafar Ali was given the death sentence in July 2003 for the murder of his wife and five daughters in 2002. The Allahabad High Court upheld the sentence in January 2004, and the Supreme Court confirmed it in April 2004.

Praveen Kumar was convicted of the murder of four people in 1994 and sentenced to death by a court in February 2002. The sentence was upheld by the Karnataka High Court in October 2002 and by the Supreme Court a year later.

Sunder Singh was given the death sentence by a court in June 2004 for the murder of five relatives in 1989. The sentence was upheld by the Uttaranchal High Court in July 2005 and by the Supreme Court in September 2010.

Maganlal Barela was sentenced to death by a court in February 2011 for the murder of his five daughters in June 2010. The sentence was upheld by the Madhya Pradesh High Court in September 2011 and the Supreme Court in January 2012.

Details of cases of other prisoners on death row

Devender Pal Singh Bhullar was sentenced to death by a special court set up under the Terrorist and Disruptive Activities Prevention Act (TADA) in August 2001 for his involvement in a bomb attack in New Delhi in 1993 that killed nine people. The Supreme Court confirmed the conviction and death sentence in March 2002, although one of the three judges had found him not guilty, saying there was no evidence to convict him.

After his [constitutional review] petition was rejected, Devender Pal Singh Bhullar again approached the Supreme Court to commute his sentence on grounds including delay in the disposal of his mercy petition. In April 2013, the Supreme Court refused to commute his sentence, stating that delay “cannot be invoked in cases where a person is convicted for an offence under TADA or similar statutes.”

Significant factors: Devender Pal Singh Bhullar’s trial fell far short of international standards for a fair trial. He had no access to a lawyer during his initial detention and trial. He was found guilty on the basis of an unsubstantiated confession made to the police, which he later retracted, claiming it was a false confession made under police pressure.

The Supreme Court bench which heard his latest petition did not adequately consider concerns raised about his mental health.

Trials under the TADA did not uphold international fair trial standards; provisions of the TADA were also grossly abused in India to facilitate further human rights violations. The TADA was allowed to lapse in 1995.

Saibanna Natikar was sentenced to death by a trial court in January 2003 for the murder in 1994 of his second wife and daughter. At the time of the crime, he had been free on parole from a life sentence for the murder of his first wife. The Karnataka High Court upheld the sentence in October 2003, and the Supreme Court did so in April 2005.

Significant factors: While one of the judges on the two-judge bench in the High Court which heard the case was in favour of giving the death sentence, the second judge was in favour of sentencing Saibanna to life imprisonment, saying that the case was “not a fit case to award death sentence”. The case was referred to a third judge, who ruled in favour of the death penalty. In some cases involving similar non-unanimous rulings, the Supreme Court has commuted the death sentence to life imprisonment.[11]

In 2009, the Supreme Court – in a different case – observed that the reasoning underlying the confirmation of Saibanna’s death sentence in the Supreme Court judgement in 2005 implied that the death penalty was mandatory for any prisoner already serving a life sentence and convicted of a second offence that merited a life sentence. The Court said that such reasoning violated an earlier decision which had ruled that mandatory death sentences were unconstitutional.[12] UN bodies and mechanisms have repeatedly stated that the mandatory imposition of the death penalty violates international law.

In August 2012, fourteen former High Court and Supreme Court judges wrote to the President of India asking him to commute the death sentences of Saibanna and 12 other prisoners, which they said were given in judgments that were per incuriam, or bad law.

B A Umesh was given the death sentence by a court in October 2006 for the rape and murder of a woman in 1998. The sentence was upheld by the Karnataka High Court a year later, and by the Supreme Court in February 2011.

Significant factors : In November 2012, the Supreme Court – in a different case – observed that the Court’s ruling in B A Umesh’s case had wrongly presumed that he was guilty of other instances of robbery and assault and deemed him ‘incapable of rehabilitation’ despite his guilt not having been proven in any other case.[13]

Dharampal was convicted and sentenced to death in May 1997 of the murders of five people in 1993, committed while he was released on bail after being convicted of rape. The sentence was upheld by the Punjab and Haryana High Court in September 1998 and by the Supreme Court in March 1999.

Balwant Singh Rajoana was convicted and given the death sentence by a court in 2007 for his involvement in the killing of a former Punjab Chief Minister and 16 other people in 1995. The death sentence was confirmed by the High Court of Punjab and Haryana in October 2010. Balwant Singh Rajoana’s execution was scheduled for March 31, 2012, but was stayed after a mercy petition was filed before the President.

Supreme Court’s consideration of delay in disposal of [constituional review] petitions

Read more here-  http://www.sikhsiyasat.net/2013/10/10/oct-10-world-day-against-death-penalty-india-must-commute-death-setnences-of-all-prisoners-at-risk-of-execution-amnesty/

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