Supreme Court urged to consider absolute prohibition of torture
New Delhi The Supreme Court resumes on 10 writ petitions involving 18 death row convicts challenging the rejection of mercy pleas by the President on the ground of delay, Asian Centre for Human Right in its report, “Mercy on Trial in India” stated that India had a total of 414 death row convicts at the end of 2012. The maximum number of death row convicts were in Uttar Pradesh (106) followed by Karnataka (63); Maharashtra (51); Bihar (42); Delhi (27); Gujarat (19); Punjab (16); Kerala (14); Tamil Nadu (12); while Assam, Jammu and Kashmir and Madhya Pradesh each had 10 death row convict prisoners.
Out of 414 death row convicts, 13 were female. Maharashtra had maximum with five followed by Delhi (four); Punjab (two); and one each in Haryana and Karnataka.
India currently has 21 death row convicts whose mercy petitions have been rejected by the President. While the Supreme Court had already adjudicated on the rejection of mercy petition of Devender Pal Singh Bhullar by the President, the writ petitions of the remaining 20 are under adjudication before the Supreme Court and the High Courts.
Asian Centre for Human Rights urged the Supreme Court to examine the issue of delay and laches as it is a critical factor in the administration of justice, especially in the context of discretionary powers.
“The executive power of the President and the Governors cannot be so discretionary to cause mental trauma in conditions considered to be inhumane and degrading to the condemned prisoners.” – stated Mr Suhas Chakma, Director of Asian Centre for Human Rights.
“The Supreme Court of India must not only consider the death penalty through the right to life principle but also through the absolute prohibition of torture or cruel, inhuman or degrading treatment or punishment. Since India has ratified International Covenant on Civil and Political Rights (ICCPR) in 1979, it is bound by its treaty obligations on absolute prohibition on the use of torture and inhuman or degrading treatment or punishment even in times of public emergency, which threatens the life of the nation, under Articles 4 and 7 of the ICCPR.”- further stated Mr Chakma.
Elaborating international standards, ACHR stated that the European Court of Human Rights in its judgement on 7 July 1989 in the case of Soering v. the United Kingdom held that “the likelihood of the feared exposure of the death-row convict to the death row phenomenon” is in breach of Article 3 of the European Convention on Human Rights relating to prohibition of torture. The ECHR, taking into account length of detention prior to execution, conditions on death row and age and mental state of the death row convicts further held that “the very long period of time spent on death row (six years in Virginia in the United States) in extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence” is in breach of the threshold set by Article 3 (art. 3).”
Further, the Inter-American Court of Human Rights and Inter- American Commission on Human Rights held in Paul Lallion v. Grenada, Denton Aitken v. Jamaica and Hilaire v. Trinidad and Tobago that prison conditions, together with the anxiety and psychological suffering caused by prolonged periods on death row, constitute a violation of the prohibition on torture and other cruel, inhuman and degrading treatment.
“If six years delay in the prisons in Virginia, the United States were found to be in breach of absolute prohibition of torture and other cruel, inhuman and degrading treatment, there is no reason as to why the delay upto 14 years in deplorable prison conditions in India would not constitute a violation of India’s treaty obligation with respect to absolute prohibition of torture.”- contended Mr Chakma.
Even if the Supreme Court is to consider “inordinate executive delay” as grounds for commutation of capital punishment to life imprisonment, India conducting more executions remains imminent. There are at least two death-row convicts whose mercy petitions have been rejected by the President in less than three years. Condemned prisoner, Maganlal Barela of Madhya Pradesh filed his mercy petition on 9 January 2012 and it was rejected by the President on 22 July 2013 in less than two years. The mercy petition of condemned prisoner Sunder Singh of Uttarakhand was filed on 16 September 2010 and rejected by the President on 4 April 2013 in less than three years.
Since the adoption of the resolution 62/149 by the General Assembly on 18 December 2007 on moratorium on the use of the death penalty, 150 countries, including 30 states in Asia and the Pacific region, ended the use of the death penalty in law or in practice.
The Asian Centre for Human Rights called upon the Government of India to immediately put a moratorium on death penalty with the aim for its eventual abolition as each execution moves India further away from the accepted international administration of justice.
Between 1950 and 2009, over 300 mercy petitions were filed before the President of India. A number of death row convicts also submitted their mercy petitions to the Governors of the States under Article 161 of the Constitution. A total of ten mercy petitions were pending with the Governor of Maharashtra as on 15 June 2013.
Statistics on executions in India since 1947 are not available. The Government of India treated information on death penalty as a State secret. As per the 35th Report of the Law Commission of India relating to “Capital Punishment”, a total of 1410 death row convicts were executed in various states during 1953-1963 alone. The 35th Report of the Law Commission of India however did not cover States such as Assam, Jammu and Kashmir, Rajasthan and Delhi and the figures are therefore not accurate. There is also no information concerning executions from 1964 to 1994 in addition to those prior to 1953. The National Crime Records Bureau started collecting information on death penalty only from 1995 and as per the NCRB, a total of 21 condemned prisoners have been executed since 1995.
While the Supreme Court already adjudicated on the rejection of mercy petition of Devender Pal Singh Bhullar by the President, the Supreme Court is considering 10 writ petitions involving 18th death row convicts in 10 writ petitions i.e. of (1) Murugan, Santhan and Arivu, (2) Death row convicts, Suresh and Ramji, (3) Praveen Kumar (4) Simon, Gnanaprakash, Madaiah and Bilavendran; (5) Jafar Ali, (6) Gurmeet Singh, (7) Shivu Munishetty and Jadeswamy Rangashetty, (8) Sonia and Sanjeev, (9) Sunder Singh and (10)Maganlal Barela. While the Punjab and Haryana High Court has stayed execution of condemned prisoner Dharam Pal, the Karnataka High Court had stayed the execution of condemned prisoner Saibanna Nigappa Natikar after rejection of their mercy pleas by the President.