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Walking dead too long – #deathpenalty

Walking dead too long
By:Somasekhar Sundaresan

Lengthy process of implementing death sentence doesn’t function as retribution or deterrence

The Supreme Court has ruled that it would start a new tradition of hearing in open court, petitions seeking review of judgments confirming the death penalty. Otherwise, all review petitions are considered by the judges in chamber without another hearing. This decision, yet again underlines the sensitivity in our highest judiciary to the infliction of death by man on man.

The futility of capital punishment has often found mention in this column. More recently, rulings of the Supreme Court on the unacceptable length of time between the imposition of a death sentence and execution were lauded – the court has consistently ruled that even a convict sentenced to death enjoys the constitutional protection of the right to life until the last breath. The Supreme Court has documented, with examples, how convicts on death row have gone insane or physically infirm, just waiting to know if they would be put to death or pardoned. Of late, undertrials accused of gruesome crimes that are widely reported in the media have been found dead in prison under mysterious circumstances – typically explained away as suicide, they are recipients of lawless justice meted out the honour code among prison inmates.
Expectedly, hardliners rail against such considerations. If a criminal can kill with impunity, they would argue, there should be no reason to spare her from any form of indignity. They would accuse defense lawyers of frustrating execution. A typical line one hears is that it is only in India one experiences delays in execution and the system is broken. The United States of America is often extolled for perceived speed in punishment and the allegedly consequential fear of law in the American society.
Nothing could be farther from the truth as is underlined in a judgment handed down just six weeks ago by a Californian court. Striking down a death sentence handed down in 1995 to a rape and murder convict, the court has held the death penalty system in California to be violative of the constitutional protection against imposition of cruel and arbitrary punishment. The court found that since 1978 (when California introduced a new law on capital punishment), over 900 individuals were sentenced to death there. Only 13 have been executed, 63 died of natural causes, 22 committed suicide, and the rest still languish in prison. Indeed, some prison inmates have died of “drug overdose” or “violence in the exercise yard”.
The review and appeal of a death sentence takes more than 25 years in California. The national average in the US, at over 15 years, is not spectacularly better. Only 17 out of the 748 Californian convicts with a death sentence have had their appellate and review processes run its full course. Since 2006, no execution has taken place. Over 20 per cent of the death row convicts have crossed the age of 60 in prison. The random few who do get executed would have languished for so long that their execution would serve neither the purpose of retribution nor deterrence, the court has observed.
“Indeed, the law, and common sense itself, have long recognized, the judgment reasons, “that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition.” These observations could well have been about India. Despite the paraphernalia of safeguards, the administration of the death sentence is as damaged in the US as it is in India. The blind faith Indian hardliners have in the US justice system is therefore neither backed by facts nor shared by her constitutional courts. In fact, access to justice is so expensive in the US that even the innocent are incentivized to strike “plea bargains” rather than fight to clear their reputation, relieving prosecutors from having to stand the test of scrutiny. The super-rich settle to save super-expensive litigation costs. The impoverished end up in jail. The quality of legal representation they then get is proportionate to their financial strength, rather than strength of their merits.
Our Supreme Court’s latest decision on a public review of death sentences is therefore understandable – one has to be truly cautious about consigning any human into the living hell that the death sentence represents.

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Should death penalty go? Law panel begins review

Should death penalty go? Law panel begins review
The move comes close on the heels of the Supreme Court commuting the death sentence of 19 persons after their mercy pleas were rejected since January this year.
MUMBAI: Almost half a century after it said the time was not right to abolish the death penalty, the Law Commission of India has embarked on an exercise to take a relook at the issue. The Law Commission has issued a public consultation paper on capital punishment with a detailed questionnaire open to the public to send in their views on the issue.

The move comes close on the heels of the Supreme Court commuting the death sentence of 19 persons after their mercy pleas were rejected since January this year. In one of the cases, the apex court referred to the conundrum and observed that “perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapitative goal”.

Interestingly, the Bombay high court is hearing a last-ditch attempt by two Kolhapur women to save themselves from the noose after their mercy pleas were rejected by the President — they will be the first women to be hanged in independent India. Renuka Shinde and her sister, Seema Gavit, were sentenced to death for kidnapping 13 children and killing nine of them in the 1990s.
READ ALSO: Two sisters from Maharashtra’s Kolhapur may become the first women to be hanged in India

Besides inviting the views of the public, the commission said it was also planning to collect data related to the death penalty from various trial courts, high courts and the apex court. It will also engage law schools to conduct research on the issue. “People have begun to speculate about the end goal of keeping a penalty such as death sentence on the statute book,” said the commission, adding, “In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice.”


For almost eight years between 2004 and 2012, no executions were carried out till the moratorium was broken with the hangings of 26/11 terrorist Ajmal Kazab and Parliament attack accused Afzal Guru. Critics of the death penalty have pointed to the falling crime rates during this period to tackle the argument that capital punishment acts as a deterrent.
READ ALSO: Parliament House attack convict Afzal Guru hanged to death

According to the government only 54 persons have been executed since Independence. The National Crime Records Bureau’s report reveals that between 2001 and 2011, an average of 132 death sentences were handed down each year by trial courts across the country. The Supreme Court during the same period, however, confirmed only 3-4 death sentences each year.

READ ALSO: Ajmal Kasab hanged and buried in Pune’s Yerwada Jail

Under the Indian Penal Code, crimes that are punishable with a death sentence include treason, abetment of mutiny, perjury resulting in the conviction and death of an innocent person, murder, kidnapping for ransom and dacoity with murder. Following the Nirbhaya case, Parliament changed the law to make a second charge of rape punishable with the death penalty. The Criminal Procedure Code requires special reasons to be given for awarding capital punishment and in 1980 the apex court had set the “rarest of rare” criteria in such cases.

According to law experts, each legal challenge to the death penalty has failed, with the SC quoting the 1967 report of the Law Commission which had said: “Having regard, however, to the conditions in India, to the variety of social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

Advocate Yug Chaudhry said that the Law Commission’s report commands great respect both in Parliament and in courts. “Convicts are being executed in our names, and if one is opposed to this there will be few more opportune moments to do so than the commission’s public consultation,” he said. Chaudhry is representing the two Kolhapur women convicts before the high court.

 

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Temporary high court relief for sisters on death row

Temporary high court relief for sisters on death row
The high court on Wednesday came to the temporary rescue of the two sisters from Kolhapur on death row.
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MUMBAI: The high court on Wednesday came to the temporary rescue of the two sisters from Kolhapur on death row. The HC recorded a statement of the state prison chief at Yerawada and the Centre that there would no execution of the two sisters until it passes a final decision. If the execution is upheld it would make the two sisters the first women to be hanged in the state.

The HC bench of Justices V M Kanade and P D Kode said it has the jurisdiction to hear and decide a petition filed by the two death row convicts, who want the sentence to be commuted to life due to the inordinate delay in the mercy plea getting rejected. The HC has directed the Centre and the state to file their reply and explain the inordinate delay in disposal of the mercy plea by the President.

The court also allowed Majlis, a women’s right organization, to intervene in the matter. Renuka Shinde (45) and Seema Gavit (39), the two sisters on death row, whose mercy plea the President had rejected on July 31, will thus not be hanged at Yerawada jail, where they are lodged till September 9, when the HC will next hear the matter.

Justice Kanade said his main question was whether the HC had the jurisdiction to hear a plea by convicts whose death sentence has been upheld by the SC, and mercy petition rejected by the President. Since the sisters had moved the HC and sought protection of their right to life due to the excessive and unjustifiable delay, the bench first questioned their counsel Yug Chaudhary on the right to vacate an order passed by the SC. The bench was later satisfied that the HC could hear the matter under the powers vested in it by the Constitution Article 226 to uphold and protect the right to life of any citizen given the supervening circumstances of an eight-year delay after the confirmation of death sentence by the SC.

The sisters were held guilty and sentenced to death sentence for the kidnap and murder of 14 children by the Kolhapur sessions judge in 2001. The SC had upheld the death sentence in 2006 and the mercy petition was filed in 2010 and decided in July 2014. On Tuesday the sisters’ lawyers Sudeep Jaiswal and Vijay Hiremath said the mercy plea delay had violated their constitutional right to life.

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Death Penalty: Is it Justice or Human Right Violation?

Death-Penalty

By Mousumi Roy

08 August, 2014
Countercurrents.org

Shocking lawlessness, bribery, sex crimes, murders etc do happen in many countries. But the manner in which these are happening in India in recent years and are rising alarmingly causing great concern.

Major cities in India are not safe for women. The plight of women in villages can be inferred. People are crying for blood of the Delhi rape accused, Rape case of photo journalist in Mumbai has also been dealt through fast track court. But in rural India, many dalit women are raped, caste based clashes lead to abduction, murder of women, even child girls are not being spared. None of these incidents of aggression, violence against women are of any lesser significance. We have to take up all these issues, raise voices. Rise of sexual assaults against women in recent time are shaming India. These are sad and depressing incidents. It is not a matter of law alone, a matter of human decency too. Although women in India have excelled in various spheres of life over the years, they are still subjugated and no one can actually tell for how long this subjugation will exist. Attempts are indeed being made to bring equality, to uplift socio-economic conditions. More efforts are needed to bring in gender equality. Above all, it is the mindset which needs to be changed, coupled with education, awareness drive and sincere efforts will only bring about results.

Abductions, murders, terror acts are also on the rise. Money power of rich people, political influences and protections to offenders, are also to be blamed for increase in crime rates. Our Police forces are meant for providing protection and security of VIPs and guarding their close relatives and are not seem to be for common people.

India being known as a great democratic nation, has got its own elaborate legal system and judiciary in place but poor and ineffective implementation encouraging crimes from cheating to bribing, eve teasing to raping, murdering and many more. Prolong process in our judiciary system, delay in verdict etc are failing to win confidence and trust by our citizen.

Attitudes and prejudices are built up over generations and are reinforced by conformity. We become desensitized to wrong-doing. Empathy is a more powerful and sustainable catalyst for long term change towards a more peaceful society than just law enforcement can ever be. Life sentence, hanging, stoning to death, castrating are all symptomatic approaches to the problem, like a painkiller, unless the tumor is removed, the pain will return with vengeance. It is not just about a filthy contorted mind, it is about how the sickness, perversion is established in a young mind which grows up in inhuman conditions. Priority of the government should focus on education, health, sanitation, security and quick deliverance of justice with harsh punishment.

Many human rights activists argue if we cannot allow someone to live we cannot take his/her life also. Any kind of crime, brutal acts, killing individuals, civilians, terrorist activities or evils against societies or nations must be treated as punishable offence and harshest possible punishment must be imposed. But by taking away life by imposing death penalty, we are not allowing him to realize, feel what sufferings has caused for his crime. So attempts should be made to allow him to live and make him understand through the process of rigorous and harshest life-long imprisonment and make him suffer until his death. This can be projected as an example of harshest punishment.

Victims’ concerns about impunity focus on the actions of criminals, stopping them from committing further crime and holding them accountable for the crimes. The needs of the surviving family members of victims are justice for the crime. The death penalty can divide and damage families. Unlike any other punishment, the death penalty sometimes creates irreconcilable conflict amongst the surviving family members. The reality of the death penalty system is- it just doesn’t work. It doesn’t make the public or police safer, it is prone to mistakes that snare innocent people, and it is not a good use of scarce public resources. The death penalty creates additional victims. When the state carries out an execution, the surviving family member becomes victim of homicide. The death penalty is a false promise to victims. Proponents of the death penalty put forth the notion that an execution can be a solution to the pain experienced by a survivor of a murder victim. The hardest thing for a victim is to accept that they cannot change the past. But what sometimes ends up happening is the murder claims two victims.

As citizen of democratic nation, one should view the death penalty not as a criminal justice sanction, but as a human rights violation. In order to aspire to live in a society, in a world where human life is cherished and the dignity of all is respected, hope and optimism should exist. Our planet can live without the death penalty and hope the day will come when “Death Penalty” as capital punishment is abolished.

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India – Bill to Award #DeathPenalty to Hijackers May be Tabled in Parliament #WTFnews

Bill to Award Death Penalty to Hijackers May be Tabled in Parliament

Reuters

Representational Image

New Delhi Almost 15 years after the Kandahar hijack, a bill to award the death penalty to hijackers is likely to be brought to Parliament soon. The bill would also give the right to security forces to shoot down an aircraft which may be used as a missile.

Officials in the Civil Aviation Ministry are in parleys with their counterparts in the Law and Justice Ministry to take forward the much-delayed Anti-Hijacking (Amendment) Bill to amend the 1982 Act which was cleared by the Cabinet headed by Prime Minister Manmohan Singh in March 2010.

The legislation was then introduced in Rajya Sabha in August 2010 by then Civil Aviation Minister Praful Patel and referred to the Standing Committee on Transport, Tourism and
Culture which submitted its report in October the same year. The bill did not see the light of the day thereafter.

The discussions are veered around issues like incorporating the latest global anti-hijack laws and bring the Indian law in line with the Beijing Protocol of the UN body International Civil Aviation Organisation (ICAO), official sources said.

Major incidents like that of the erstwhile Indian Airlines flight IC-814 in 1999 and the September 11, 2001 terror strikes in the United States have shown that civilian aircraft were hijacked and used as missiles to cause mass destruction.

In view of such growing threats, the draft bill proposes to amend the Anti-Hijacking Act, 1982, to enhance its scope by including death penalty for the offence of hijacking which at present provides for imprisonment for life and fine.

The proposed law would also give teeth to concerned agencies or security forces to immobilise an aircraft or prevent its take-off and also allow the Indian Air Force to scramble its fighters to intercept a hijacked aircraft and force it to land, they said.

A hostile plane could also be shot down if there is evidence that it could be used as a missile to hit a vital installation.

Read mor where- http://www.ndtv.com/article/india/bill-to-award-death-penalty-to-hijackers-may-be-tabled-in-parliament-570082

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#DeathPenalty Is Incompatible With Human Dignity

Death-Penalty

By Charles J. Ogletree Jr., The Washington Post

19 July 14

 have wondered countless times over the past 30 years whether I would live to see the end of the death penalty in the United States. I now know that day will come, and I believe that the current Supreme Court will be its architect.

In its ruling in Hall v. Florida in May, the court — with Justice Anthony M. Kennedy at the helm — reminded us that the core value animating the Eighth Amendment’s cruel and unusual punishments clause is the preservation of human dignity against the affront of unnecessarily harsh punishmentHall, which prohibited a rigid test in use in Florida for gauging whether a defendant is intellectually disabled, was the most recent in a series of opinions in which the court has juxtaposed retribution — the idea of vengeance for a wrongdoing, which serves as the chief justification for the death penalty — with a recognition of our hopelessly complex and fallible human nature.

What was important about Hall is the way Kennedy described the logic behind exempting intellectually disabled individuals from execution: “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being” because the “diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment.” Though the court previously barred imposition of the death penalty upon intellectually disabled people, as well as juvenile offenders, Hall marked the first time that it went so far as to claim that imposing the death penalty upon offenders with these kinds of functional impairments serves “no legitimate penological purpose.”

This is why I see an end coming to the death penalty in this country. The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows. A new study by Robert J. Smith, Sophie Cull and Zoë Robinson, published in Hastings Law Journal, of the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits.

One-third of the offenders had intellectual disabilities, borderline intellectual function or traumatic brain injuries, a similarly debilitating impairment. For example, the Texas Department of Corrections determined that Elroy Chester had an IQ of 69. He attended special education classes throughout school and never functioned at a higher level than third grade. The state had previously enrolled Chester into its Mentally Retarded Offenders Program. Despite these findings, Texas executed him on June 12, 2013.

More than half of the 100 had a severe mental illness such as schizophrenia, post-traumatic stress disorder or psychosis. For example, for more than 40 years, Florida’s own psychiatrists found that John Ferguson suffered from severe mental illness. Ferguson had a fixed delusion that he was the “Prince of God” who could not be killed and would rise up after his execution and fight alongside Jesus to save the United States from a communist plot. When Ferguson was executed on Aug. 5, 2013, his last words were: “I just want everyone to know that I am the Prince of God and I will rise again.” A Florida court had called Mr. Ferguson’s delusions “normal Christian beliefs.”

Many other executed offenders endured unspeakable abuse as children. Consider Daniel Cook, whose mother drank alcohol and abused drugs while she was pregnant with him. His mother and grandparents molested him as a young child, and his father physically abused him by, for example, lighting a cigarette and using it to burn Daniel’s genitals. Eventually the state placed Daniel in foster care, but the abuse didn’t stop. A foster parent chained him nude to a bed and raped him while other adults watched from the next room through a one-way mirror. The prosecutor responsible for Cook’s death sentence stood behind him during the clemency process, telling authorities that he would have taken the death penalty off of the table had he known of his torturous childhood. Arizona refused to commute Cook’s sentence, however, and he died by lethal injection on Aug. 8, 2012.

As the execution of Elroy Chester, John Ferguson, Daniel Cook and many more like them illustrates, barring the death penalty for intellectually disabled and juvenile offenders did not solve the death penalty’s dignity problem. Rather, those cases gave us cause to look more closely at the people whom we execute. And when you look closely, what you find is that the practice of the death penalty and the commitment to human dignity are not compatible.

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Law Commission Report on #DeathPenalty

Death-Penalty

A Chance to Overcome Incoherence in Indian Jurisprudence?

Indian jurisprudence is at a place today where we are neither sure of the deterrent effect of the death penalty nor as to when it ought to be awarded. Whichever way one wants to look at it, the death penalty serves no reasonable penological purpose. The only objective that it seems to fulfil is the aberrant sense of catharsis that it offers to a public baying for blood. Perhaps, the Law Commission’s new report will serve to provide the research for a fresh constitutional challenge. And perhaps the Supreme Court will, on this occasion, play its true role as a counter-majoritarian institution.

Suhrith Parthasarathy ([email protected]) practises at the Madras High Court, Chennai.

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

– Justice Potter Stewart of the US Supreme Court in Furman vs Georgia.1

Of all the arguments to be made against the death penalty it is the punishment’s inglorious irrevocability that is most resonant. On 4 May 1996, Ravji Rao was hanged to death by the state of Rajasthan just over three years after he had committed the murder of his pregnant wife and three children. Rao’s sentence had been confirmed by the Supreme Court of India, only months earlier. The Court in Ravji alias Ram Chandra vs State of Rajasthan2 had found Rao’s crime so brutal that his economic and social status was, to it, irrelevant in determining his sentence. “It is the nature and gravity of the crime but not the criminal”, wrote the Court, “which are germane for consideration of appropriate punishment in a criminal trial.” Only, the Court was wrong.

In 2009, in Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra,3 the Supreme Court declared its judgment in Ravji per incuriam. According to justice S B Sinha, Ravji was rendered in ignorance of law and binding precedent. The conclusion in Ravji’s case that it is only the characteristic of a crime, to the complete exclusion of the social and economic status of a criminal, which ought to be relevant in sentencing a convict, was, according to Sinha, palpably erroneous. It ran counter, Sinha noted, to the diktats of Bachan Singh vs State of Punjab,4 which remains the central law governing capital punishment in India. Here, the Supreme Court had ruled that

in fixing the degree of punishment or making the choice of sentence for various offences… the court should not confine its consideration ‘principally’ or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.

The consequences of Ravji were disastrous. At least 15 criminals had been sentenced to death as a result of the decision, and for two of them – Rao and Ram – the Supreme Court’s admission of its own error had come too late.

Since Bariyar, which brought out the inherent flaw in Ravji, the court has observed in several decisions that the effects of following Ravji had deeply blemished the court’s sentencing policy.5 In Sangeet vs State of Haryana,6 for example, the court pointed out that even after its declaration that Ravji had been erroneously decided, it had continued to render irrelevant a criminal’s socio-economic background in determining the sentences of numerous convicts. For instance, inMohd Mannan vs State of Bihar,7the court, in referring merely to the nature of the crime – which in this case was a brutal rape and murder of a seven-year-old girl – confirmed the award of the death sentence. “When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified”, wrote the court, “one has to lean towards the death sentence”.

The penological disaster brewed by Ravji even promoted a group of 14 former judges of the Supreme Court and various high courts to make an extraordinary appeal to the President of India.8 In a letter dated 1 July 2012, the group implored the government to commute the sentences of 13 persons in seven different cases to life imprisonment. Capital punishment in each of their cases, the retired judges pointed out, had been awarded based on a now-admittedly flawed application of the law. “This matter goes to the very heart of our Constitution and the system of democratic government”, they wrote, “because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court.”

The moral confusion wrought in the minds of India’s judges by decisions such as Ravji has since extended to other areas of bureaucratic concern. Recently, the Supreme Court had to intervene to commute to life imprisonment the sentences of 15 convicts on the death row. In Shatrughan Chauhan vs Union of India9 the Court ruled that an unreasonable delay in disposing a mercy petition filed by a person on the death row was tantamount to torture, and was valid ground for commuting his or her death sentence.10 For instance, in the case of Gurmeet Singh, one of the petitioners before the Supreme Court, there had been a delay of more than seven years in the disposal of his mercy petition by the governor and the president. As a result, Singh had spent 26 years in custody – more than double what most convicts sentenced to life imprisonment undergo.

Law Commission Report

It is these decisions – in Chauhan, which shows that the process adopted by the executive in disposing mercy petitions filed by death row convicts is often arbitrary and capricious, and Bariyar and Sangeet, which show the vagaries and uncertainties of India’s penology – that have now prompted the Law Commission of India to review the country’s capital punishment laws. There is, the commission believes, a woeful lack of research on the issue of death penalty in India in spite of the glaring iniquities highlighted in the Supreme Court’s jurisprudence. In a consultation paper released on 24 May, the Commission notes,

The state of research on the application of death penalty law by the judiciary is so inadequate that chances of an informed and rigorous policy analysis on this issue are seriously impeded. A constitutional challenge if and when taken up by the Supreme Court or a legislative change in the law will be ill served in the present environment of lack of study on the issue.

With a view to furthering the analysis on the subject, the commission has invited views from the general public. Once it receives these views, it will proceed to study data relating to the death penalty collected from various trial courts, high courts and the Supreme Court to arrive at its final report.

The commission’s work is likely to be of particular importance because a previous constitutional challenge before the Supreme Court ended in failure. It is this decision in Bachan Singh vs State of Punjab,11 which serves as bedrock to the entire gamut of death penalty jurisprudence in India. Here, the validity of two provisions was in question: Section 302 of the Indian Penal Code (IPC) 1860 insofar as it imposed the sentence of death for crimes of murder, and Section 354(3) of the Code of Criminal Procedure (CrPC) 1973, which in prescribing the procedure for the award of a death sentence, according to the petitioners, invested the Court with unguided and untrammelled discretion.12

The challenges in Bachan Singh were made on three primary grounds. First, the death penalty infracted the six freedoms comprised in Article 19(1) of the Constitution. Since capital punishment served no clearly identifiable social purpose, and since its deterrent effects were unproven, at best, it was argued that it could not represent a reasonable restriction on the right to human dignity of an individual. Second, it was contended by the petitioners that capital punishment contravened the right to life and personal liberty guaranteed by Article 21. Post Maneka Gandhi vs Union of India,13 the procedure established by law through which the right to life and personal liberty could be curtailed had to be just, fair and reasonable. In other words, our Constitution, according to the Supreme Court, guaranteed not merely procedural but also substantive due process. And the death penalty, the petitioners in Bachan Singh argued, was opposed to the fundamental tenets of due process – which required the state to treat each person’s life with equal importance. Third, and finally, it was argued that the vice of arbitrariness permeated the law of capital punishment in India. In bestowing the court an unhindered discretion in determining when to grant the ultimate sentence, the law, according to the petitioners, violated Article 14 and its guarantee of equality.

The majority of judges in Bachan Singh, however, rejected each of these submissions.14 Curiously, the Court concluded that penal laws could almost never infract the rights mentioned in Article 19(1). As Justice Sarkaria wrote,

It cannot, reasonably or rationally, be contended that any of the rights mentioned in Article 19(1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19(1).

Second, the Court held that neither Section 302 of the IPC, which allowed courts to sentence people to death for committing murder, nor Section 354(3) of the CrPC, violated Article 21. The Constitution’s framers, Sarkaria wrote, were conscious of the existence of death penalty for murder.15 Therefore, even if the death penalty violated a person’s right to life, it would be justified so long as the procedure fixing such punishment was just, fair and reasonable, in accordance with Article 21. Here, the procedure encompassed in Section 354(3), which required a judge granting a death sentence to record special reasons for doing so, was, according to the majority in Bachan Singh, in conformity with the Maneka-principles. The guidelines, wrote Sarkaria, were neither arbitrary nor unfair, and they required the court to exercise its discretion in a manner known to law. As a result, neither Section 302 of the IPC nor Section 354(3) of the CrPC violated the fundamental guarantees of Articles 21 and 14 of the Constitution.16

However, with a view to guiding the sentencing process, the majority in Bachan Singh further ruled that in cases of murder, the death penalty ought to be the exception as opposed to the rule. Capital punishment, according to the Court, could be inflicted only in the gravest cases of extreme culpability, and in making the choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender, also. “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality”, wrote Sarkaria. “That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”17

‘Rarest of Rare’

This “rarest of rare” doctrine has since transfused death penalty literature in India like a brooding omnipresence. But the doctrine’s chief proposition – that the death penalty ought to be awarded sparingly – was diminished by the Supreme Court only a year after Bachan Singh. In Machhi Singh vs State of Punjab,18 a three-judge bench of the Court fell into a trap that the majority in Bachan Singh had been careful to avoid. It sought to define a “rarest of rare” case by providing concrete examples of different categories of cases where the community’s “collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty”. Each of these categories, however, quite opposed to the diktats of Bachan Singh, focused only on the crime, as opposed to the criminal. These were, respectively, the “manner of commission of murder”, the “motive for commission of murder”, the “anti-social or socially abhorrent nature of the crime”, the “magnitude of crime”, and the “personality of victim of murder”. In the decades that followed, therefore, although the courts often paid their homage to Bachan Singh’s central thesis, they nonetheless relied on Machhi Singh to determine what a rarest of rare case was. Consequently, as opposed to the death sentence being awarded only in cases where the alternative option was foreclosed by a supposed inability to reform the offender, capital punishment was considered the appropriate penalty for murder purely on the basis of the nature and characteristic of the crime.

The Machhi Singh doctrine, as we have seen through cases such as Ravji, quite apart from being contrary to Bachan Singh’s edicts, has also ingrained in India’s death penalty jurisprudence a confused arbitrariness. In Swami Shraddananda (2) vs State of Karnataka,19 the Supreme Court, for the first time, recognised the flaws in Macchi Singh’s decision. Justice Aftab Alam, writing on behalf of a three-judge bench, ruled that the categories framed in Machhi Singh,while useful, could not be taken as “inflexible, absolute or immutable.” A year later in Bariyar, Justice Sinha highlighted the particular incoherence bred by Machhi Singh, which had given rise to a state of uncertainty in capital sentencing law that was clearly in foul of constitutional due process. Yet, even after Swami Shraddananda (2) and Bariyar, the courts continue to apply Machhi Singh’s conditions as a litmus test, while giving the “rarest of rare” doctrine a complete go-by.

In 2011, for instance, in Ajitsingh Harnamsingh Gujral vs State of Maharashtra,20 a two-judge bench of the Supreme Court confirmed the award of the death sentence by altogether ignoring the social and economic status of the criminal. Justice Markandey Katju, who wrote the court’s opinion, said, in conclusion, that

burning living persons to death is a horrible act which causes excruciating pain to the victim, and this could not have been unknown to the Appellant…In our opinion, a person like the Appellant who instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner cannot be reformed or rehabilitated. The balance sheet is heavily against him and accordingly we uphold the death sentence awarded to him.

Curiously, the court in Ajitsingh’s case neither cited Bariyar nor thought it fit to justify how the offender in the case was incapable of being reformed. Going by Katju’s logic, it is difficult to envisage any rationale for implementing a reformatory system of criminal justice.

Incoherence Persists

The fundamental incoherence in India’s death penalty jurisprudence has now been further exacerbated by a new series of Supreme Court verdicts. In February 2013, in Gurvail Singh vs State of Punjab,21 a two-judge bench of the court supplied a completely new interpretation to Bachan Singh to hold that “to award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused.” In other words, unless the crime has been proved to be particularly reprehensible and dastardly, and unless there is nothing in the criminal’s background to suggest that he is incapable of being reformed, the death penalty ought not to be awarded. This conclusion in Gurvail Singh has been seemingly augmented by the Supreme Court through its decision in Shankar Kisanrao Khade vs State of Maharashtra.22 However, the opinion of the Court, written by Justice K S Panicker Radhakrishnan, has only confused matters further. Radhakrishnan writes:

To award death sentence, the ‘crime test’ has to be fully satisfied, that is 100% and ‘criminal test’ 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record, etc, the ‘criminal test’ may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R lest). R-R Test depends upon the perception of the society that is ‘society centric’ and not ‘Judge centric’ that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges.

Justice Radhakrishnan in his topsy-turvy verdict appears to have misread Bachan Singh’s dictum. He seems to hold that the test to determine what constitutes a rarest of rare case is distinct from one which takes into account the socio-economic characteristics of the criminal. He first rules that there ought to be no mitigating circumstance favouring the criminal to award the death penalty, and then, intriguingly, finds that a so-called “R-R test” ought to nonetheless be conducted to see whether society’s abhorrence demands the award of the penalty. Justice Radhakrishnan’s conclusion, therefore, contradicts the fundamental thesis that he seeks to originally endorse.

In any event, in a move that seeks to revert the theory of death penalty in India to the Machhi Singh doctrine, the Supreme Court has now held, in Mahesh Dhanaji Shinde vs State of Maharashtra, that the decision in Shankar Kisanrao Khade treads beyond the mandates of Bachan Singh.23 Where this leaves us is not only questionable but also perplexing. We are at a place today where we are neither sure of the deterrent effect of the death penalty nor are we sure of when it ought to be awarded. Whichever way one wants to look at it, the death penalty serves no reasonable penological purpose. The only objective that it seems to fulfil is the aberrant sense of catharsis that it offers to a public baying for blood. The death penalty, howsoever implemented, can never fulfil the demands of constitutional due process. Perhaps, the Law Commission’s report will serve to provide the research for a fresh constitutional challenge. And perhaps the Supreme Court will, on this occasion, play its true role as a counter-majoritarian institution.

Notes

Furman vs Georgia, 408 US 238 (1972).

Ravji alias Ram Chandra vs State of Rajasthan (1996) 2 SCC 275.

Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) 6 SCC 498.

Bachan Singh vs State of Punjab (1980) 2 SCC 684.

5 See for example: Dilip Tiwari vs State of Maharashtra (2010) 1 SCC 775, Rajesh Kumar vs State (2011) 13 SCC 706,Sangeet vs State of Haryana (2013) 2 SCC 452; Mohinder vs State of Punjab (2013) 3 SCC 294.

Sangeet vs State of Haryana (2013) 2 SCC 452.

Mohammad Mannan vs State of Bihar (2011) 5 SCC 317.

8 V Venkatesan, “A Case against the Death Penalty”, http://www.hindu.com/thehindu/thscrip/ print.pl?file=20120907291700400.htm&date= fl2917/&prd=fline& (last visited: 18 June 2014).

Shatrughan Chauhan vs Union of India (2014) 3 SCC 1.

10 The dictum in Chauhan was followed by the Supreme Court in V Sriharan vs Union of India (2014) 4 SCC 242. Here, a three-judge bench commuted to life imprisonment the death sentences awarded to three individuals who had conspired and murdered the former Indian Prime Minister Rajiv Gandhi.

11 See: supra note.

12 See: A G Noorani (1982), “Death Penalty and the Constitution”, EPW, Vol XVII, No 36, 4 September.

13 Maneka Gandhi vs Union of India (1978) 1 SCC 248.

14 Justice R S Sarkaria wrote on behalf of himself, Chief Justice Y V Chandrachud, and Justices N L Untwalia, and A C Gupta. Justice P N Bhagwati wrote a dissenting opinion.

15 Articles 72 and 161, which respectively empower the President and the Governor to commute sentences including death sentences, shows that the framers were quite cognizant of the existence of the death penalty for certain offences when drafting the Constitution.

16 Justice P N Bhagwati famously dissented from the majority’s decision in Bachan Singh. However, his opinion was rendered nearly two years after the majority’s verdict was announced. In his dissent, Bhagwati holds that the death penalty violates both Articles 14 and 21 of the Constitution.

17 The emphasis here is mine.

18 Machhi Singh vs State of Punjab (1983) 3 SCC 470.

19 Swami Shraddananda (2) vs State of Karnataka (2008) 13 SCC 767,

20 Ajitsingh Harnamsingh Gujral vs State of Maharashtra, AIR 2011 SC 3690.

21 Gurvail Singh vs State of Punjab (2013) 2 SCC 713.

22 Shankar Kisanrao Khade vs State of Maharashtra (2013) 5 SCC 546.

23 See: Mahesh Dhanaji Shinde vs State of Maharashtra 2014 (3) SCALE 96.

 

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Lanka rights body recommends abolition of #deathpenalty

Death-Penalty

They proposed that death sentences given to convicts be commuted to life imprisonment

Press Trust of India  |Colombo 

 Last Updated at 14:22 IST

Sri Lanka‘s top rights body has recommended the government to abolish capital punishment.

In a report handed over to the government yesterday, theHuman Rights Commission of Sri Lanka (HRCSL) has recommended the review of death penalty and proposed that death sentences given to convicts be commuted to life imprisonment.

Prathiba Mahanamahewa, HRCSL Commissioner said the recommendation would be officially conveyed to the President Mahinda Rajapaksa in order to amend the law.

Currently, there are 529 death row prisoners, most of them between 30 to 50 years of age. Atleast 451 of them have appealed against the sentence, he said.

They have repeatedly told the commission to either hang them or commute their death sentence to life imprisonment.

The HRCSL has decided to make this recommendation considering the mental and physical trauma caused to them, Mahanamahewa said.

In December 2012, Sri Lanka had abstained from voting at the UN General Assembly that called for a global moratorium on capital punishment.

Although the death penalty is on the law books, no hangings have been carried out since June 1976.

Since late 1990s, due to a rise in violent crimes, there has been a greater demand for capital punishment however, the report said that capital punishment had not deterred or decreased the rate of crime. Read more here- http://www.business-standard.com/article/international/lanka-rights-body-recommends-abolition-of-capital-punishment-114071100584_1.html

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Modi govt. want to overturn judicial position on #deathpenalty cases #WTFnews

The newly formed BJP led NDA government in India is planning to challenge the position taken by the Indian judiciary that undue delay in executions caused by delay in deciding constitutional review petition by President of India forms valid ground for granting clemency to a convict.

As per media reports the home ministry of India has conveyed to the ministry of law that the President’s decision on capital punishment should be considered final after the legal procedure is completed and that the President’s decision, once taken, cannot be challenged in court.

Hanging Rope KnotAs per media report the law ministry is now preparing to file a curative petition shortly on behalf of the Central government against the top court order commuting death sentences of at least 15 convicts, as well in the case involving commutation of death penalties awarded to former Prime Minister Rajiv Gandhi’s killers to life terms citing an 11-year delay.

“A combined curative petition will be filed in the SC for all the cases where death sentences have been commuted to life terms despite the President’s rejection of the same,” an named top government official was quested by a report published in Deccan Chronicle (DC).

The MHA, in its draft affidavit sent to the law ministry, is learnt to taken the view that the President is the “sovereign authority” and once the President exercises the constitutional powers vested in him under Article 72 and rejects a constitutional review petition, the court only has limited powers for judicial review.

The MHA has also taken the view that the government needs to take a tough stand on “terror-related” cases and other “heinous crimes” falling in the so-termed “rarest of rare” category and attracting capital punishment.

Such cases, if commuted, do not send out a positive signal, govt. thinks.

Thirdly, the MHA has conveyed to the law ministry that the inordinate delays being cited on behalf of the government in disposing of petitions by themselves cannot be sufficient grounds for commuting death sentences. Moreover, since there is no time frame set for the President to decide on a review plea, there is no question of delay on the part of the President.

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Sudan death sentence woman ‘freed’ #goodnews

Meriam Yahia Ibrahim Ishag, a 27-year-old Sudanese woman sentenced to hang for apostasyMeriam Ibrahim gave birth to a baby daughter in prison

A Sudanese woman sentenced to death for abandoning her Islamic faith has been freed from jail, her lawyer has told the BBC.

Meriam Ibrahim’s death penalty was overturned by an appeal court, the official Suna news agency reported.

She is married to a Christian man and was sentenced under Sharia law to hang for apostasy in May after refusing to renounce Christianity.

Her husband, Daniel Wani, said he was looking forward to seeing her.

He wanted his family to leave Sudan as soon possible, Mr Wani, who is a US citizen, told the BBC Focus on Africa radio programme.

L: Daniel Wani with his daughter R: David Wani with this sonDaniel Wani visited his children at the prison near Khartoum
Meriam Ibrahim and her husband, Daniel WaniThe couple got married in a church after meeting in 2011

The death sentence for Meriam Yahia Ibrahim Ishag, who gave birth to a daughter in prison not long after she was convicted, sparked international outrage.

“We are very very happy about this – and we’re going to her now,” Mrs Ibrahim’s lawyer Elshareef Ali told the BBC.

“They have released her… she’s on her way to home,” he said.

Mr Ali said Mrs Ibrahim had shown “extraordinary courage” during her ordeal.

“It’s a victory for freedom of religion in Sudan… By Mariam’s strong position, we believe that in the future no-one will be subjected to such a trial,” he said.

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Analysis: James Copnall, former BBC Sudan correspondent

The outcry generated by Meriam Ibrahim’s case was difficult for the authorities to ignore.

The government in Khartoum is already dealing with an economic crisis, and conflicts in Darfur, South Kordofan and Blue Nile. It simply does not need further ill-feeling – and it is worth pointing out that many of the most vocal opponents of the conviction were Sudanese, not foreigners.

In fact, Mrs Ibrahim’s case looks like part of a recurring theme.

In 2009 Lubna Hussein, dubbed the “trouser woman”, was arrested for wearing “indecent clothing” in public – in her case a pair of loose green trousers. She was at risk of a public flogging. Eventually she was given a small fine, which was then paid on her behalf to set her free. In 2012, Intisar Sharif Abdullah was sentenced to death by stoning for adultery, before she too was released without charge.

In every case, the authorities insist the justice system came to an independent decision, but many believe it bowed to public pressure.

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Born to a Muslim father, Mrs Ibrahim, 27, married Mr Wani, a Christian, in 2011.

She has been in jail since February, along with her young son.

Mr Ali said he had not yet seen the appeal court’s judgement, and had learned about the verdict through the media.

Sudan has a majority Muslim population. Islamic law has been in force there since the 1980s.

Even though Mrs Ibrahim was brought up as an Orthodox Christian, the authorities consider her to be a Muslim.

Her husband, who was born in South Sudan before it became independent from Sudan, went to the US in 1998 at the height of the civil war.

He met Mrs Ibrahim in 2011 on a visit to Sudan and they were married at the main church in Khartoum.

 

Read more here– http://www.bbc.com/news/world-africa-27979782#TWEET1165096

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