Capital punishment: India

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Executions in India, 2004-13; Graphic courtesy: The Times of India, July 30, 2015

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Contents

Court verdicts

Death only when life term inadequate: SC/ 2019

AmitAnand Choudhary, March 13, 2019: The Times of India


Holding that the death sentence should be awarded for heinous crimes only when life imprisonment appears to be wholly inadequate, the Supreme Court on Tuesday spared a man from the gallows and sentenced him to 25 years in jail for raping and killing a minor girl in 2015.

A bench of Justices N V Ramana, M M Shantanagoudar and Indira Banerjee convicted a school bus driver who had raped and murdered the child in Jabalpur and refused to give credence to some discrepancies in the statement of witnesses. It said traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial.

The accused had taken the ground that there were procedural lapses on the part of police and his alleged confession, which led to the recovery of the victim’s body, was liable to be rejected as the panchnama was drawn at the police station and not at the spot from where the body was recovered. He said the prosecution’s case mainly rests on the last-seen circumstances, but the said circumstance has not been duly proved.


SC: Benefit of doubt must not be fanciful

The court, however, rejected his plea and said there was sufficient evidence to prove his guilt and upheld the trial court and HC’s order of conviction. But the bench commuted the punishment to 25 years’ imprisonment without remission. “As has been well-settled, life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment having regard to the relevant facts and circumstances of the crime,” the bench said.

Rejecting the plea of the accused for granting him the benefit of the doubt, the bench said courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused.

“In our considered opinion, all the circumstances relied upon by the prosecution are proved beyond reasonable doubt and consequently the chain of circumstances is so complete so as to not leave any doubt in the mind of the court that it is the accused and accused alone who committed the offence in question. It is worth reiterating that though certain discrepancies in the evidence and procedural lapses have been brought on the record, the same would not warrant giving the benefit of the doubt to the accused/appellant. It must be remembered that justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt given to an accused must always be reasonable, and not fanciful,” the bench said.

HC says, execution delay against rights, commutes death

Shibu Thomas, HC commutes death for 2 due to execution delay, July 30, 2019: The Times of India


The Bombay high court on Monday commuted the death penalty given to two convicts in the 2007 Pune BPO employee rape and murder case to life imprisonment of 35 years, citing the “inordinate and unreasonable” delay in executing them.

A division bench of Justices Bhushan Dharmadhikari and Swapna Joshi said the 35-year jail term would include the time they have already spent in jail.

Purushottam Borate (38) and Pradeep Kokade (32), who were due to be executed on June 24, 2019, had approached the high court through their lawyer Yug Chaudhry. The duo were sentenced to death for raping and murdering a 22-year-old woman employee of a BPO company in Pune.


Execution delay against rights: HC

In September 2012, the high court had confirmed the death sentence and the Supreme Court in May 2015 upheld the capital punishment. The Maharashtra governor rejected their mercy petitions in April 2016 and the President in May 2017. On April 10, 2019, a Pune sessions court had issued warrants setting their date of execution as June 24.

“The delay in execution of death penalty in the present matter is undue, inordinate and unreasonable,” said the bench.

“Delay by any arm of the state would be against their fundamental rights. Extra or additional punishment resulting from avoidable delay cannot be legalised because it is on account of undue time taken by constitutional functionaries. Such additional punishment is unconstitutional in all circumstances and contingencies,” said the judges.

The court cited procedural delaysand said that in the digital age, when communication had advanced to emails, the state was still relying on old methods like telegrams and express mails.

Besides the delay, the court referred to other irregularities. The state had not supplied the sessions court judgment and other crucial material to the governor before he took a decision to reject the mercy pleas.

Crime and capital punishment

Rape- murder and capital punishment

Dhananjay Mahapatra, LEGALLY SPEAKING - Rape-murder: Hard to say which case'll lead to noose, May 8, 2017: The Times of India

Rape and murder of 23 year-old paramedic Nirbhaya on December 16, 2012 had sparked unprecedented national outrage.Deep internal wounds caused by wolves of lust snuffed out her life 13 days later in Singapore, where she was shifted for emergency treatment.

The Supreme Court termed the crime “brutal, barbaric and diabolic“ to award death penalty to all four adult accused. Thunderous applause followed the unanimous decision of Justices Dipak Misra, R Banumathi and Ashok Bhushan. Members of society , who had defied prohibitory orders on cold December nights of 2012 to hold candle-light marches in the capital, clapped in approval.

Did the SC show similar sensitivity in the last two decades for society's cry for justice in even more shocking rape-cum-murder cases involving extreme brutality?

What separated the Nirbhaya case from these, which happened away from cities, was the absence of public outrage and candle-light marches.

In the hinterland, life continues to be cheap, that of a girl child even cheaper.Rape and murder of a girl is blamed more on her destiny than the accused. Daily struggle for livelihood quickly douses the outrage, and candles are far too costly to buy and burn for the cause of a dead girl.

Is award of death penalty dependent on an individual judge's sensitivity and volatility of his judicial conscience?

In February 1999, a bench of Justices G B Pattanaik and S Rajendra Babu commuted death penalty to life sentence for Akhtar, who was concurrently awarded death penalty by the trial court and Allahabad HC for raping and murdering a minor girl. The logic, “The accused has committed murder of the girl neither intentionally nor with pre-meditation. The accused found a young girl alone in a lonely place, picked her up for com mitting rape; while committing rape and in the process by gagging, the girl had died. It cannot be categorised as `rarest of rare' case to justify imposition of death penalty .“

In December 1999, an SC bench of Justices G T Nanavati and K T Thomas in Maharashtra vs Suresh found the man guilty of kidnapping a four-year-old girl, sexually assaulting her and then murdering her. The trial court had awarded him death penalty .But the HC acquitted him.The SC said the HC had gravely erred by ignoring material evidence. But it commuted death sentence to life imprisonment saying the man was acquitted, even though erroneously , by the HC.

In October 2001, in Bantu vs Madhya Pradesh, Justices R C Lahoti and Ashok Bhan awarded life sentence to a man found guilty of raping and murdering an 11-year-old girl. After murdering her, he had chopped off her ankles with an axe to take her silver anklets. The parents discovered her body and severed limbs in the fields.

In Sebastian vs Kerala, Justices H S Bedi and J M Panchal in October 2009 commuted death sentence to life imprisonment for a man who had kidnapped a two-year-old child, raped her and then murdered her brutally . Despite recording that the man was a known paedophile, the SC said imprisonment for entire life was just punishment.

In September 2013, Justices C K Prasad and Kurian Joseph in Rajasthan vs Jamil Khan found a man guilty of brutally raping and killing a five-year-old. He had packed the body in a gunny bag and left it in a train. Commuting the trial court's decision to impose death penalty, the SC awarded 24 years jail term to him.

In February 2014, Justices B S Chauhan and M Y Eqbal found a man guilty of raping a friend's daughter and murdering her by strangulation.The girl used to call the rapist `uncle'. The SC set aside the concurrent decisions of the trial court and the HC to award death sentence and replaced it with 35 years jail term. It said, “We are of the view that in spite of the fact that the appellant has committed a heinous crime and raped an innocent, helpless and defenseless minor girl who was in his custody , he is liable to be punished severely, but it is not a case which falls within the category of `rarest of rare’.“

Apparent lack of uniformity in awarding sentences, even in gruesome murder cases, was discussed by the SC in November 2012 in Sangeet vs State of Haryana. “In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately , not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judgecentric sentencing rather than principled sentencing,“ it had said.

It said the Bachan Singh case (1980), contrary to popular perception, did not endorse the principle of aggravating and mitigating circumstances to weigh imposition of capital punishment. “ Aggravating circumstances relate to crime while mitigating circumstances relate to criminal. A balance-sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review,“ it had said. We hope the Nirbhaya judgment will make the SC take a relook at the nuances of sentencing so as to inject uniformity .

Legal provisions

Section 364A of the Indian Penal Code

Sec 364A: Too harsh a provision?

TIMES NEWS NETWORK 2013/07/05

The Times of India

New Delhi: The Supreme Court had laid down the “rarest of rare” criteria for courts to award death penalty only in select heinous and gruesome murder cases.

In this background, can Parliament enact a law providing for mandatory death penalty for those found guilty of murdering a person after kidnapping him to demand ransom? Would this not amount to pushing every offence of kidnap for ransom involving murder of the victim into ‘rarest of rare’ category without a judicial determination to that effect?

This question was framed by Justices T S Thakur and S J Mukhopadhaya while referring to a petition challenging the constitutional validity of Section 364A of Indian Penal Code, which imposes mandatory death penalty in kidnap for ransom involving murder of the kidnapped.

The petition was filed by one Vikram Singh, who was convicted under Sections 302 (murder) and 364A of the IPC and awarded death penalty on both counts. The apex court had upheld his conviction and sentence.

But in his petition before the Supreme Court, his counsel D K Garg argued that if the court came to the conclusion that punishment provided under Section 364A of IPC was unconstitutional, then a lenient view could be taken on the death penalty awarded to his client under Section 302.

He argued that Section 364A made even a first time offender liable to be punished with death, which was too harsh to be considered just and appropriate.

Appearing for the Union government, additional solicitor general Sidharth Luthra argued, “It is within the legislative competence of Parliament to provide remedies and prescribe punishment for different offences depending upon the nature and gravity of such offences and the societal expectation for weeding out ills that afflict or jeopardize the lives of citizens and the security and safety of vulnerable sections of the society, especially children who are prone to kidnapping for ransom and being brutally killed if their parents are unable to pay the ransom amount.

“The provisions of Section 364A are not only intended to deal with cases of kidnapping for ransom involving murder of victim but also cases in which terrorists and other extremist organizations resort to kidnapping for ransom or to such other acts only to coerce the government to do or not to do something.”

The court agreed with Luthra that the petitioner had not questioned the competence of Parliament in enacting the law and said the petitioner challenged it only on the ground of harshness.

“The questions (asked by the petitioner) may require an authoritative answer... The peculiar situation in which the case arises and the grounds on which the provisions of Section 364A are assailed persuade us to the view that this case ought to go before a larger bench of three judges for hearing and disposal.”

Judiciary vs Parliament, the debate

Who should debate death penalty: SC or Parliament?

The Times of India, Aug 03 2015

Dhananjay Mahapatra

For the past many decades, we have witnessed a psychological and constitutional battle between two classes -those seeking abolition of death penalty and others who lean for its retention. Yakub Abdul Razak Memon's last-gasp attempts to seek stay of his execution has brought the spotlight back on the debate between abolitionists and retentionists.

Petitions to save Yakub from the gallows assumed a Phoenix-like character as the execution time approached.Dismissal of one was quickly followed by another. Such is the importance given to right to life by the Supreme Court that it opened its doors postmidnight and heard Yakub's plea till the crack of dawn.

The rejection of his final appeal drew the ire of activistlawyers who had virtually taken the legal battle as an all-out war against retentionists.

Their sombre mood soon turned combative. Many renowned advocates who have doggedly fought for human rights for years sniped at the justice delivery system and government, saying a “lynch mob“ and “bloodlust“ attitude had resulted in a “tragic mistake by the SC“.

Till 1973, the law had given absolute discretion to the judges to choose between death penalty and life imprisonment in murder cases. Despite this, the SC had repeat edly cautioned the trial courts to exercise discretion, keeping in mind the criminal and not the crime.

In 1973, the new Criminal Procedure Code made it imperative that life imprisonment was the rule and death penalty the exception for murder convicts. It also said the judge was duty-bound to record special reasons for which heshe preferred to award death penalty instead of life term.

The analysis of `special reason' led the SC to devise the `rarest of rare' doctrine for award of death penalty in the Bachan Singh case in 1982 while upholding the validity of capital punishment. This we will deal with a little later.

Even prior to the enactment of the new CrPC, a five judge SC bench in Jagmohan Singh vs state of UP (1973 AIR 947) had answered alleged arbitrariness in imposing death penalty , which the petitioner said extinguished every constitutional right of a convict, and that there was no guideline for judges in deciding which cases warranted imposition of capital sentence.

It had said, “The exercise of judicial discretion on well-recognized principles is, in the final analysis, the safest possible safeguard for accused.“

Seven years later, a threejudge bench headed by Justice V R Krishna Iyer dealt with a similar question in Rajendra Prasad vs State of UP (1979 AIR 916). It had cautioned against individual cases being made examples to argue either for abolition or retention.

“Personal story of an actor in a shocking murder, if considered, may bring tears and soften the sentence. He might have been a tortured child, an ill-treated orphan, a jobless man or the convict's poverty might be responsible for the crime,“ it had said.

However, it upheld the constitutional validity of death penalty saying there could be a situation where law-breakers brutally kill law enforcers trying to discharge their function. “If they are killed by designers of murder and the law does not ex press its strong condemnation in extreme penalization, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence.“

Four years later, a constitution bench by four-to-one majority upheld the validity of death penalty in Bachan Singh case on August 16, 1982. It had classified murders into two broad categories -one committed purely for private reasons and the other which “unleash a tidal wave of such intensity , gravity and magnitude, that its impact throws out of gear the even flow of life“.

It explained the stand of abolitionists. “Statistical attempts to assess the true peno logical value of capital punishment remain inconclusive.Firstly , statistics of deterred potential murderers are hard to obtain. Secondly , the approach adopted by the abolitionists is over simplified at the cost of other relevant but imponderable factors, the appreciation of which is essential to assess the true penological value of capital punishment. The number of such factors is infinitude, their character variable, duration transient and abstract formulation difficult,“ it had said.

However, it had sounded caution. “Judges should never be blood-thirsty . Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of In dia, show that in the past, courts have inflicted the extreme penalty with extreme infrequency -a fact which attests to the caution and compassion they have always brought to bear on the exercise of their discretion.“

The statistics and studies in the past few decades have been woefully inadequate to help the SC arrive at a definitive opinion about the efficacy of death penalty. It is time for abolitionists to spend their energies convincing representatives of people to raise the matter in Parliament and bring an amendment to the provisions of law providing for death penalty rather than blame the judiciary for imposing the punishment in `rarest of rare' murder cases.

Find alternatives to hanging: SC to government

Krishnadas Rajagopal, October 6, 2017: The Hindu


Death convicts should die in peace and not in pain, it says. Why can’t hanging as a means of causing death of condemned prisoners stop? Find alternatives to death by hanging, SC tells govt.

The condemned should die in peace and not in pain. A human being is entitled to dignity even in death, the court observed.

The government should look to the “dynamic progress” made in modern science to adopt painless methods of causing death.

A Bench led by Chief Justice of India Dipak Misra issued notice to the government and ordered it to respond to the issue in the next three weeks.

“Legislature can think of some other means by which a convict, who under law has to face death sentence, should die in peace and not in pain. It has been said since centuries that nothing can be equated with painless death,” Chief Justice Misra observed in the order.

The court clarified that it was not questioning the constitutionality of the death penalty, which has been well settled by the apex court, including in the Bachan Singh case reported in 1983.

The court said Section 354 — which mandates death by hanging — of the Code of Criminal Procedure has already been upheld.

However, the provision of hanging to death may be re-considered as “the Constitution of India is an organic and compassionate document which recognises the sanctity of flexibility of law as situations change with the flux of time.”

The fundamental right to life and dignity enshrined under Article 21 of the Constitution also means the right to die with dignity, the court said.

The order comes on a writ petition filed by Delhi High Court lawyer Rishi Malhotra, who sought the court’s intervention to reduce the suffering of condemned prisoners at the time of death. Mr. Malhotra said a convict should not be compelled to suffer at the time of termination of his or her life. “When a man is hanged to death, his dignity is destroyed,” he submitted.

During the hearing, Justice D.Y. Chandrachud, one of the three judges on the Bench along with Justice A.M. Khanwilkar, pointed out that in the U.S. a prisoner suffers for almost 45 minutes before his death by lethal injection.

Legislative wants expansion, judiciary wants restriction

Maitreyi Misra and Ruchi Chaudhury, Divergence on death penalty: The legislative expansion and judicial restriction of capital punishment in India, February 12, 2019: The Times of India


The statistics on the state of death penalty in 2018 is an indication of the confusion that besets use of death penalty in India. Drastically different treatment by the legislature, trial courts and the appellate judiciary further intensifies competing tensions in administration of the death penalty.

Calls for death penalty began early on in the year in the backdrop of incidents in Kathua and Unnao. 2018 also saw the prime minister encouraging the death penalty in his Independence Day speech and amendments to IPC and Pocso introducing the death penalty for rape of children.

As far as its judicial treatment is concerned, trial courts in 2018 imposed a record number of 162 death sentences – the highest in nearly two decades. The Supreme Court, on the other extreme, commuted 11 out of the 12 death sentence cases it decided and continued to signal concerns with administration of the death penalty by courts below.

The legislative expansion of death penalty is not new. In the last five years, Parliament passed two other laws introducing death penalty. The Delhi gang rape prompted amendments to IPC in 2013 introducing death penalty for certain sexual offences. In 2016, the Anti-Hijacking Act was passed prescribing death penalty as well.

The legislature guided by political and public reactions has immense faith in death penalty as a response to heinous crimes. But, irrespective of public notions, the law requires courts to consider aspects beyond just the crime when imposing death sentence.

Socioeconomic circumstances of the individual, age, past history, time spent in prison, and the probability of reformation are some factors, which the Supreme Court itself has declared as integral to the sentencing process. However, in reality all levels of the judiciary have for long struggled with using their own terms of reference in administering the death penalty uniformly.

Given this context, expanding the use of death penalty in an already constitutionally suspect framework threatens to weaken the criminal justice system even further. Lack of cohesion within the judiciary is evident from multiple instances when the appellate judiciary has pushed back against the eagerness of trial courts in imposing death penalty.

The Supreme Court has time and again indicated that death sentence is being used by the lower courts more liberally than is intended. The ‘Death Penalty India Report, 2016’ found that over a 15-year period from 2000 to 2015, less than 5% of death sentences were eventually upheld by the Supreme Court.

This trend seems to be continuing. In 2018 itself, various high courts commuted death sentences in 55 cases, of which 24 involved sexual offences. Interestingly, out of the nine death sentences imposed by trial courts under the 2018 law, six were commuted by the respective high courts.

On its part the Supreme Court commuted 11 death sentences in 2018, including a dissenting opinion by Justice Kurian Joseph calling for the abolition of the penalty itself. Six of these commutations by the Supreme Court involved charges pertaining to sexual offences. Be that as it may, the Supreme Court’s performance on death penalty sentencing is also rife with inconsistencies as traced by ‘Lethal Lottery: The Death Penalty in India’, a report analysing over 50 years of the Supreme Court’s jurisprudence on this issue.

It is evident that death penalty encounters different responses at various levels of the judiciary. While the trial courts demonstrate an exaggerated affection for death penalty, appellate courts seem to be increasingly sceptical.

This incoherence has been particularly glaring in the past year. The legislature’s faith in death penalty, then, is in sharp contrast to this reality and its reliance betrays an honest evaluation of the criminal justice system.

Procedure before the execution

Pre-execution meet between convict and kin

The Times of India, Jan 22 2016

Pre-execution meet between convict & kin now a must

A final, pre-execution meeting between the death row convict and his family members has been made mandatory under a new prison manual finalised by the home ministry . This comes in the wake of the erstwhile UPA government coming under severe criticism for having hanged Parliament attack convict Afzal Guru without letting his family meet him for a last time.

Even the letter intimating his family of the decision to execute him had reached his wife after Afzal had already been hanged. The new prison manual provides for legal aid to death row convicts at all stages, even after rejection of their mercy petitions.

The new model prison manual running into 32 chapters aims at bringing basic uniformity in laws, rules and regulations governing the administration of prisons and the management of prisoners all over the country .

Provision of legal aid to prisoners sentenced to death at all stages, even after rejection of mercy petitions, facilitating and allowing a final meeting between a prisoner and his family have been incorporated in new Chapter XII (Chapter XI of the 2003 manual).

Other key changes for death row convicts include procedure and channels through which mercy petitions are to be submitted, communication of rejection of mercy petitions and furnishing necessary documents, such as court papers, judgments, to the prisoners. Regular mental health evaluation for death row prisoners, physical and mental health reports to certify that the prisoner is in a fit physical and mental condition are key provisions, according to a home ministry statement.

Hangmen

2019: No hangman in MP

No hangman in MP to execute death sentence, February 5, 2019: The Times of India


Soon after the Satna district court ordered death sentence to the teacher who brutally raped a four-year-old and scheduled his execution for March 2, the Jabalpur Central Jail is looking for a hangman to carry out the execution. There are none in the state, as well.

It is not clear as to who would hang him at the gallows in Jabalpur Central Jail at 5.00 am on March 2 as mandated by the court. Though death penalty, particularly in cases of child rape or child rape/ murder cases is becoming commonplace in Madhya Pradesh following a new law enacted in April 2018 providing for capital punishment for rape of a minor less than 12 years of age, there is no hangman in the state to carry out the capital punishment at Jabalpur Central Jail, the only jail in the state where execution can take place.

Trial courts in the year 2018 sent 21 convicts of sexual assault and murder cases to the gallows. There is a drastic change in the scenario in the state where the last execution took place at Jabalpur Central Jail in 1996.

At that time, too a hangman was brought from Uttar Pradesh to execute the death sentence.

When director general (prisons), Sanjay Chaudhary, was asked whether MP would now recruit hangmen in the wake of more death penalties being handed out to a number of convicts, he said, “There never was a sanctioned post of hangman (Jallad) in the past nor now.”

He further said, anonymous persons, often from other states, are called for execution of death penalty in the state as and when required. “When a convict was awarded death sentence and was to be executed at Indore Central Jail in 1974-75, I remember, the hangman had come from Maharashtra,” he said. Sources at Jabalpur Central Jail, where last execution took, said that on both the occasions, hangmen were called from Uttar Pradesh. “In 1995, a father and son were hanged for murder and in 1996, one Kanta Prasad was executed again for murder. In both the occasions, hangmen had come from UP,” said an official at Jabalpur Central Jail on condition of anonymity.

It was again at the Central Jail, Jabalpur, where arrangements had been made for execution of Maganlal Barela, on August 8, 2013 and again a hangman was called from UP. But Supreme Court had stayed the execution at the last minute after the then Chief Justice of India listened to arguments of Peoples’ Union for Civil Liberties counsel Colin Gonsalves at his residence after mid-night on August 7.

The mentally ill and capital punishment

2019:  SC stops execution of mentally ill convicts

Dhananjay Mahapatra, India joins nations that don’t execute mentally ill convicts, June 2, 2019: The Times of India


In a landmark judgment catapulting India into a league of nations that don’t execute the mentally ill, the Supreme Court has barred the execution of a person if he loses his mental balance and cognitive power during post-conviction imprisonment.

Courts across the world, including India, have historically considered mental illness as a mitigating circumstance for imposition of lenient sentences as the offender, because of his mental incapacity, seldom knows the consequences of his action, which becomes a crime. But this is the first time that the SC took note that punishment is a communication from the sentencing system to the criminal about the consequences of his action. When a prisoner loses cognitive power because of post-conviction mental illness, the essence of that communication — consequences of the crime — is lost, it said.

This judgment came on a petition seeking review of the SC’s 2008 ruling upholding the death penalty given to a person for sexually assaulting and murdering two minor girls. However, he will be kept in jail till death.


SC: Mental illness can’t be a ruse to escape the noose

The judgment of the bench of Justices N V Ramana, M M Shantanagoudar and Indira Banerjee, said, “The notion of death penalty and the sufferance it brings along causes incapacitation and is idealised to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution because of his disability, the raison d’etre for the execution itself collapses.”

“When such a disability occurs, a person may not be in a position to understand the implications of his actions and the consequences it entails. In this situation, the execution of such a person would lower the majesty of law,” Justice Ramana, writing the judgment for the bench said.

Realising that this ruling could be misused, the SC warned that post-conviction mental illness could not be used as a ruse by condemned prisoners to escape the noose. “This ground needs to be utilised only in extreme cases of mental illness... only extreme cases of convicts being mentally ill are not executed,” the bench said. The bench laid down the test of post-conviction severe mental illness as a ground for non-execution of condemned prisoners.

“The test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of death penalty.,” the SC said.


The notion of death penalty and the sufferance it brings along causes incapacitation, and is idealised to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution because of his disability, the raison d’etre for the execution itself collapses

—SC judgment

Religion, caste, education, income and death sentences

Death sentences reflect the population composition

The original caption was:
Majority of prisoners on death row are OBCs, SC, ST and a minority, are economically vulnerable and are less educated; Graphic courtesy: The Times of India, May 07 2016
Indpaedia’s analysis of the same numbers as above shows that it is wrong to give a caste colour to death sentences.
The total number of persons on death row was 381.
Of this number, SC/STs were 23.62 per cent, which is slightly lower than the SC/ST share of India’s population.
No one knows what the ‘general’ and OBC share of India’s population is.
In 2011, 14.2 per cent of Indians were Muslim, 2.3 per cent Christian and 1.7 per cent Sikh. This adds up to 18.2 per cent. The Buddhists (0.7 per cent), Jains (0.4 per cent) and ‘others’ (0.9 per cent) take the total of the minorities to 20.2 per cent.
However, ‘generals’ sentenced to death were 23.09 per cent, which could be around the same as the ‘general category’s’ share of India’s population or higher. (The general category, in this case, is the Hindu ‘upper’ castes.)
19.94 per cent of the convicts were from the religious minorities. This is lower than their share of the population.
33.33 per cent of those sentenced were from the OBC.
What can be said with certainty is that as far as the SC/STs and minorities are concerned their share of death sentences is lower than their share of the population.
Stages in death sentence cases; Graphic courtesy: The Times of India, May 07 2016


Indpaedia’s analysis of the same numbers as above shows that it is incorrect to give a caste colour to death sentences.
The total number of persons on death row was 381.
Of this number, SC/STs were 23.62 per cent, which is slightly lower than the SC/ST share of India’s population.
No one knows what the ‘general’ and OBC share of India’s population is.
In 2011, 14.2 per cent of Indians were Muslim, 2.3 per cent Christian and 1.7 per cent Sikh. This adds up to 18.2 per cent. The Buddhists (0.7 per cent), Jains (0.4 per cent) and ‘others’ (0.9 per cent) take the total of the minorities to 20.2 per cent.
However, ‘generals’ sentenced to death were 23.09 per cent, which could be around the same as the ‘general category’s’ share of India’s population or higher. (The general category, in this case, is the Hindu ‘upper’ castes.)
19.94 per cent of the convicts were from the religious minorities. This is lower than their share of the population.
33.33 per cent of those sentenced were from the OBC.
What can be said with certainty is that as far as the SC/STs and minorities are concerned their share of death sentences is lower than their share of the population.

Death Penalty Project: NLU, Delhi

The Times of India, May 07 2016

1 in every 3 persons sentenced to death is eventually acquitted: Study 

Out of every 100 death sentences that trial co urts pronounce, less than five are upheld by higher courts. About 30% of the remaining prisoners are acquitted, and the sentence is commuted for the rest.

What happens to all the people trapped in the maws of criminal justice system, condemned to death? No ministry or agency has a record of how many people India has executed since Independence. Data is scarce, and the stories are unheard.

The Death Penalty Project, launched by the National Law University , Delhi, is the first to look closely at life under the death sentence. Between July 2013 and January 2015, it compiled official data and interviewed hundreds of death row prisoners and their families.

“The narratives we heard were extremely unsettling,“ says Anup Surendranath, constitutional law professor at NLUD who headed the project.

“I feel like I am caught between two blades of a scissor, with no means to escape,“ says Harikrishnan, one of the death row prisoners interviewed.

The project looks at the vagaries of the criminal justice system, the state of prisons and the brutalising of the police as an institution where torture of prisoners and threats against families are routine to draw out confessions.

But what stands out is how the long wait to hear whether they will live or die can devastate prisoners. This uncertainty, says Surendranath, “is unmatched in any other form of incarceration“.

1991-2015: 15% of hanged since 1991 were Muslims

Indpaedia: 14.2% of Indians were Muslims in the 2011 census.

The Times of India, Aug 11 2015

Himanshi Dhawan

`Just 4 of 26 hanged since '91 Muslims'

Just four of the 26 persons executed in India since 1991 belonged to the Muslim community , and yet a perception has been created by some media channels in the aftermath of the hanging of Yakub Memon that members of the minority community are being targeted, said government sources.

An internal report by the I&B ministry has taken exception to the “tenor of discussion in the four channels -Aaj Tak, ABP News, NDTV India and NDTV 24X7 -and argued it was a “serious threat to national security and had “sown seeds of distrust between communities. The common thread in their reporting was that Supreme Court had been unfair to Memon.

The ministry feels that, at the very least, an explanation should be demanded from these channels.“Repeated examples of the death sentence of Beant Singh being commuted are being cited. Truth is both of them are on death row.Similarly in the Rajiv Gandhi assassination case, it was the Congress government that delayed consideration of the mercy petition that led to SC converting their death sentence to life imprisonment, said a source who had reviewed the report.

The channels have been charged with telecasting content that was denigrating to the President, judiciary , could incite violence and against national security . The ministry has prepared grounds for justifying their action against the channels pointing out that two Hindi channels broadcast wanted gangster Chhota Shakeel's interview without editing out comments that clearly suggested unleashing of communal violence and made disparaging comments on the judiciary.

“The world has seen what you did with Yakub Memon... We don't believe in your judiciary. This was justice based on revenge.You people took revenge from one person... Chhota Shakeel told Aaj Tak.And he told ABP News: “The world has seen how you have executed an innocent man... After Babri Masjid people had taken action and many things had happened. For every action, there is a reaction... there are many people besides us (who can take action). The anchor on NDTV India described the order to hang Memon as “unfortunate and said that the courts only found merit in the prosecution's case while NDTV 24X7 in an interview of lawyer Majeed Memon broadcast remarks against the Indian judicial system. Memon was quoted commenting on the pardon given to accused Usmann Jaan Khan saying, “If you show this pardon to any person outside India, UK authorities or US authorities or the best brains in the world as far as criminal law is concerned, they will laugh at you. They will laugh at you; they'll say is this justice? Usmaan Jaan Khan has played a role in this whole operation 10 times more than Yakub. The ministry has also pointed out that former Congress minister Manish Tewari's claim that no notices were issued under UPA government was incorrect.

Statistics, year-wise

2000-15: number of executions

The Times of India, Jul 21 2015

Pradeep Thakur & Himanshi Dhawan

Death penalty cannot be arbitrarily imposed: Expert

Of the over 1,600 convicts awarded the death penalty in the last 15 years, the Supreme Court confirmed the sentence in only 5% of cases while the rest were either acquitted or the sentence commuted to life.

A recent study by the National Law University that has researched death row convicts since 2000 has found that of the 1,617 prisoners sentenced to death by trial courts, the punishment was confirmed in only 71 cases. While 22 convicts were acquitted, in the case of 115, it was commuted to life.No wonder voices against the death penalty are growing.Roger Hood, professor of criminology at Oxford University and a renowned advocate of abolition of death penalty , has told the Law Commission in a consultation that “capital punishment is not an option for India as there were very few convictions, and most were wrong“.

Hood has said India is violating Article 6(1) of International Covenant on Civil and Political Rights (ICCPR), the UN human rights charter, according to which `no death penalty can be arbitrarily imposed'. An opportunity of reformation after long retention must be given to the accused which is one of the rights according to ICCPR, he said. “Failure to provide judicial support may lead to crimes but there is no proof that death penalty helped in deterring crimes,“ Hood said. He was invited by the Law Commission last week for a consultation on capital punishment.Legal experts, social thinkers and politicians were part of the day-long deliberations in the capital on July 11.

Making a strong case for abolition of death penalty , Law Commission chairman Justice A P Shah said about two-thirds of the world has abolished death penalty and “it is time we revisited our stand“. There were six politicians who were part of the consultation process, in cluding Varun Gandhi of BJP, Kanimozhi of DMK Shashi Tharoor and Manish Tewari of Congress, who advocated abolition of death penalty.

Wajahat Habibullah, ex chief of National Commission for Minorities, said he had personal confrontation with terrorism, and still felt that death penalty was not the way to deal with terrorism. “We won the Independence struggle through the principles of `ahimsa', so we must follow it also,“ he said.

Senior advocate Prashant Bhushan blamed the trial courts for arbitrary and irresponsible judgments on death sentences. “Death penalty is a form of retribution and violence by the state. It promotes a lynch mob mentality and is not a significant deterrent for people. There is always a chance that the judicial system might go wrong,“ he said.

Suhas Chakma of the Asian Centre for Human Rights blamed executions by the state as `politically motivated'. “The fact that few sentences have been confirmed by the high courts and even fewer by the Supreme Court in comparison to the number of cases reported in the NCRB, shows that death penalty has no impact and it has no use,“ he said.

2009-13: Judicial executions, state-wise

See graphic: Death sentences, India, state-wise, 2009-13

Death sentences, India, state-wise, 2009-13; Graphic courtesy: The Times of India, August 5, 2015

2011-13, number of executions

The Times of India, Aug 12 2015

Death penalty given to 339 during 2011-13, says Centre

A total of 339 convicts were awarded capital punishment during 2011-13 and five cases of mercy petitions, involving nine convicts, were pending with the President, Lok Sabha was informed.

Minister of state for home Haribhai Parathibhai Chaudhary said as reported by the National Crime Records Bureau, a total of 117, 97 and 125 inmates were awarded capital punishment in 2011, 2012 and 2013 respectively .

“As per available records, there are five cases of mercy petitions, involving nine convicts, pending under Article 72 of the Constitution of India,“ he said replying a written question.

According to the NCRB data, no one was executed in 2011 while one convict each was executed in 2012 and 2013.

2000-15: Rich-poor divide

The Times of India, Jul 21 2015

Rich-poor divide, capital punishment; Graphic courtesy: The Times of India, Jul 21 2015

Pradeep Thakur & Himanshi Dhawan

Here's proof that poor get gallows, rich mostly escape

Disadvantaged often can't pay for good lawyers

The fact that our legal system is skewed against the poor and marginalized is well known. And to that extent, it's only expected that they get harsher punishment than the rich. But here are figures that tell the full story.

A first of its kind study , which has analysed data from interviews with 373 death row convicts over a 15-year period, has found three-fourths of those given the death penalty belonged to backward classes and religious minorities; an equal proportion were from economically weaker sections. The reason why the poor, Dalits and those from the backward castes get a rougher treatment from our courts is more often than not their inability to find a com petent lawyer to contest their conviction. As many as 93.5% of those sentenced to death for terror offences are Dalits or religious minorities.

The findings are part of a study conducted by National Law University students with the help of Law Commission that is engaged in a wider consultation with different stakeholders on the issue of death penalty and whether it should be abolished. Law panel chairman Justice A P Shah, himself a strong proponent of abo lition of death penalty , is to submit a final report to the Supreme Court by next month.

Senior advocate Prashant Bhushan said: “It is true that there is a class bias, otherwise why would we have so many people languishing in jail because they cannot afford a lawyer to get bail?“ He said only 1% of the people can afford a competent lawyer. Afzal Guru hardly had any legal representation at the trial court stage, he added.

Founder of Human Rights Law Network and senior advocate Colin Gonsalves says, “I think the finding that 75% of the death row convicts are poor is the absolute minimum. The rich mostly get away while the very poor, especially Dalits and tribals, get the short shrift.“

The NLU students have interviewed all the death sentence convicts and have documented their socio-economic background. The psychological torture these prisoners face before they are hanged are some of the observations in the study . Prisoners on death row are not allowed to attend court proceedings most of the time.

July 2013-January 2015, number of executions

The Times of India, May 07 2016


CAPITAL PUNISHMENT is ethically complicated for any society. Even those who believe that it is necessary tend to turn their eyes away from it. The Death Penalty Research Project, undertaken by the National Law University, Delhi, is the first attempt to understand exactly how this grim sentence works. The researchers studied 373 out of 385 death row prisoners between July 2013 and January 2015 to understand their backgrounds, the realities of the legal process, and what it is like to live in prison, haunted by death


DYING BY SLOW DEGREES

Waiting for death, from the first trial court sentence to the last appeal, is a unique torture.Since the 1980s, there has been continuous litigation on whether undue delay in the execution of a death sentence is grounds for commuting it. Those who file mercy petitions are caught in a pincer between hope and fear , not knowing what tomorrow will bring.

Gopichand Ravidas, Govardhan Ravidas, Mahant and Yudhisthir are suspended in time. Convicted for a caste massacre that killed 35 upper-caste people, they have spent more than 20 years in prison. Nine years after their arrest, they were sentenced to death under the Terrorist and Disruptive Activities (Prevention) Act (TADA). The Supreme Court heard their appeal a year after their conviction, but was split on the question of punishment. The death sentence was upheld. Having submitted their mercy petition in 2003, the four men have not heard back on a decision. They prefer to “die now than suffer the distress of living on death row“.

Gopichand's wife, Lalita Devi, lives in the hope that he will return, and she says that time has not dulled her pain. Their families live in poverty as wage labourers. Gopichand has never been released on bail, parole or furlough, and has rarely met his wife or children over the last two decades.


WHY THE DEATH PENALTY IS THE `PRIVILEGE OF THE POOR'

Almost three-fourths of the pris oners sentenced to death were economically vulnerable. A staggering 61.6 per cent of them had not completed secondary school. Lower castes and religious minorities made up 76 percent of the death row prisoners studied. While the study makes no claims of direct discrimination, structural disadvantage meets the flaws of the criminal justice system in deadly ways. Families are left reeling, with their main provider in prison.

Ranjay, an autorickshaw-driver, was convicted and sentenced to death for shooting a one-year-old child. The case against him says that he had demanded Rs 100 from the child's grandfather., then drunkenly fired his pistol, killing the child. His wife Shivmani has a different story . Ranjay fired at a wall, but the bullet ricocheted and hit the baby . The grandfather then assaulted him, stabbing him in the neck with a pair of scissors. Ranjay wanted to drive the child to hospital in his auto. But a crowd had taken over, attacking him and his family. Finally, Shivmani dragged him to the police, to save him from the mob. The police has not recorded that Ranjay came in with multiple wounds, or that his wife brought him to the station.

Shivmani is 36, and has been married for 15 years. She has never been to school. She has two daughters and three sons. They had built a house, but had to sell it to meet legal expenses. Shivmani worked as a cook, but recently lost her job. With no support from anywhere, she worries about saving her children from a life of crime. Her eldest daughter, who had been her anchor, has run away from home. “Though it is the convict who is sentenced to death, it is his family that dies every day ,“ she says.

Prayag was sentenced to death for a sexual violence case that got tremendous media attention. The public outrage at the crime, though, ended up devastating his family. His parents, Bhuvan and Jaya, worked as a municipal corporation cleaner and domestic worker, respectively. But as soon as Prayag was arrested, they were evicted from their building. Under threat from the housing society , they left their possessions behind, unaware that they would not be able to return.

Bhuvan and Jaya were reduced to living on the pavement outside the prison. Bhuvan had to give up his job, because of a painful swelling in his foot, and Jaya's income of Rs 1,100 a month can barely sustain them. They bathe in public toilets, and take refuge at a nearby hospital during the rains. They are still struggling to make sense of the way their world has been wrecked.


HOW DEATH ROW PRISONERS ARE LET DOWN BY THE LAW

When the quality of investigation and legal representation are flawed at the very foundation, the death penalty calls up even more un settling questions.

Out of the 220 prisoners in the study who spoke about the tampering of evidence, 142 believed that it was staged. Out of these, 106 were subjected to custodial torture,. “I always remember what a police constable told me about the IPC. The IPC is like a spider's web -big creatures burst through it and only -the small ones get caught. But he forgot to add that the spider never gets caught in its own web,“ says Hilbert, whose shirt was soaked in blood by the police, and shown to have been recovered by them.

Through the interviews, a recurring narrative emerged, of being forced to sign blank sheets of paper, which are then used for a statement. The accused are led to “reveal“ facts the police is already aware of. Stock witnesses are arranged. These are then presented as evidence by the prosecution.

A contingent of policemen in plainclothes came to arrest 30-year-old Juzer for a terror offence. They surrounded the neighbourhood, and questioned his father. After telling him that Juzer was only going to be questioned, and assuring him of no arrest, they were led to his in laws' home, where Juzer was living with his pregnant wife.Still in civilian clothes, the police took him into custody . Though Juzer's father offered information about the terror suspect, because he had been his madrassa teacher, the police refused to listen, saying his son would be back in a couple of hours.

At the police station, two Muslim officers asked Juzer to be candid with them, and that they would look out for him. But the next morning, a police officer came into the interrogation room, and told him he was now done for, that he was caught in a trap, and would have to confess involvement in the terror attack. That's when Juzer understood why he had been arrested. He was 43 at the time of the interview in prison.

Legal assistance is shoddy. Out of the 191 prisoners who spoke about it, 185 said that no lawyer had been available during interrogation. At the time of being presented before the magistrate, 169 out of 189 did not have a lawyer . Of the 20 who did , only three were legal aid lawyers. Prisoners spoke of legal aid lawyers demanding money, and conniving with the other side.Contrary to perception, 70.6% of the prisoners had private lawyers. Even poor families sold their assets to hire them.

But the lawyers had a perfunctory connection with them, at most. At the high court level, 68.4% of the prisoners had never met their lawyers. Of the cases in the Supreme Court, 44.1% of the prisoners did not even know the names of the lawyers representing them. This non-interactioncompromises the quality of defence, restricting it to the technical nature of the crime rather than its context. It also alienates the accused from the judicial process.The families are left in the dark. Chetak was sentenced to death for murdering five people, in the home where he was a domestic worker. He was verbally abused, and paid a meagre salary of Rs 1,500 a month, which was often held back to make sure he kept working. Meanwhile, his mother Narmada, who subsisted on food she got in exchange for small chores, could not afford to visit him.In the 11 years he has been in jail, she has come once, accompanying neighbours who had come to town. Chetak could not work or earn in prison. His legal aid lawyer told him he would only fight the case properly if he was paid. He also dismissed Chetak's questions about the court proceedings, saying it was beyond his comprehension. Chetak is convinced that his case would have gone differently if he had been able to afford better representation.After confirmation of his death sentence by the Supreme Court, he had no knowledge about further legal recourse. After fellow inmates told him, he sent mercy petitions to the president through the prison. He got no legal assistance, or even copies of the petition. Three years later, he learnt from a local Hindi newspaper that his petition had been rejected. He felt utterly alone throughout this complex process, he said, with “no one to listen to his voice or look out for him“


A SENTENCE WITHOUT COMPASSION

EEach of us is more than the worst thing we have ever done.

The Supreme Court's Bachan Singh judgment clarified that the taking of life is not an easy decision, that all mitigating circumstances must be considered before delivering a death sentence.

And yet, sentencing practices are lax. Defence lawyers often presented a cursory case, and judges did not rigorously apply the “rarest of the rare“ framework. They sought no information on the prisoner's circumstances -the psychological, physiological, economic and social factors that affected the individual before court.

In the US, by comparison, a whole range of such factors is explored, with social workers assisting defence lawyers. Abandonment and neglect, early sexualisation, substance abuse by parents, violence in childhood, suicidal and self-destructive tendencies are all considered. These are not marshalled to justify the crime, but to show how the accused is a sum of all many influences, and cannot be reduced to the crime alone. In India, the possibility of reformation is not fully considered, accounts of conduct in prison are rarely sought.

Navinder wakes up at 4 am and works through the day in the prison workshop, making soap and durries, gardening in the vegetable patch. He has spent 25 years in prison, sentenced to death for the murder of 13 people. His sentence was upheld by the high court and Supreme Court, his mercy petition rejected by the president after seven years. The Supreme Court finally commuted his sentence to life, on account of the inordinate delay by the executive.

Navinder was isolated from other prisoners for the first two years of prison. Later, because of his good behaviour, he was moved out of solitary confinement and allowed to involve himself in various activities.Navinder's interaction was restricted to his fellow inmates and family, but he saw that female visitors who travelled long distances to meet inmates did not have toilets to use, and led an initiative to build one. And yet, none of the three levels of the judiciary considered the possibility of reformation, before confirming the death sentence


THE CRUELTY OF CONFINEMENT

Prison conditions can be dehu manising for anyone, but they are harrowing for those facing death. Light bulbs in cells being kept on all night, sleep deprivation and squalor are common experiences. Despite legal provisions, death row prisoners are often denied basic medical attention. Those sentenced to death are not permitted to work and earn, which they often want to do, to buy essentials or just for mental respite.The presence of gallows in many prisons is a constant reminder of the death sentence -in many cases, prison officials morbidly show them to the prisoners, to traumatise them.

Jayakanthan can't stop blinking for a while. He is not used to much light, having been in solitary confinement since September 2013. He is allowed out only for 20 minutes a day .He has no human contact, except an occasional conversation with the guard outside. He has made friends with the lizards, and thinks that they are thanking him for feeding them.They visit his cell and make friendly sounds, he thinks.

Jayakanthan accepts solitary confinement as punishment for having attempted escape twice. That's because his wife and two daughters (one in college, the other in Class 8), had been rendered greatly vulnerable since his incarceration. His lawyer, a distant relative, had been sexually harassing Jayakanthan's wife, and he feared for his daughters. He had tried to escape, he explained, so that the police presence around his house would protect his family from his own lawyer

2018

Death sentences by lower courts hit 20-yr high in 2018, February 7, 2019: The Times of India

While Trial Courts Appear Eager To Hand Down Capital Punishment, Appellate Courts Are Increasingly Sceptical

The death penalty is often demanded in the aftermath of crimes that jolt the public, like the Kathua and Unnao rape cases last year. The prime minister himself claimed in his Independence Day speech that the speed at which capital punishment is awarded to rapists had shot up.

Data shows that lower courts have indeed been liberal with capital punishment. In 2018, trial courts gave 162 death sentences — the highest in nearly two decades, according to ‘The Death Penalty in India: Annual Statistics 2018’, which has been released by Project 39A at National Law University, Delhi. The Supreme Court, though, commuted 11 of the 12 death sentence cases before it, signalling concern with the lower courts’ administration of the penalty.

Of the states, Madhya Pradesh handed out the most death sentences at 22, up from 6 in 2017. The dramatic bump is due to the 2018 amendments to the Indian Penal Code (IPC), which introduced death penalty for child rape. The state also has a points system to reward prosecutors who enable quick convictions.

By law, courts are meant to consider aspects beyond the nature of the crime while imposing the death penalty. A person’s social and economic circumstances, past history, age, time spent in prison and the likelihood of reformation are factors integral to sentencing, as outlined by Supreme Court. But, in fact, “all levels of the judiciary have struggled to apply these principles in a uniform manner,” says Maitreyi Misra of the Centre on the Death Penalty, National Law University, Delhi.

The Death Penalty India Report, 2016, found that between 2000 and 2015, less than 5% of death sentences were eventually upheld by the SC.

In 2018, high courts commuted 55 death sentences, of which 24 were cases involving sexual offences. Interestingly, out of the nine death sentences imposed by trial courts under the 2018 law, six were commuted by the respective high courts. SC commuted 11 death sentences, and Justice Kurian Joseph wrote a dissenting opinion calling for the abolition of the punishment.

But even the Supreme Court’s record is inconsistent, as laid out in the report, ‘Lethal Lottery: The Death Penalty in India’, which analyses 50 years of jurisprudence on the issue.

Clearly, the judiciary is torn on the issue — while trial courts are eager to impose the sentence, appellate courts are increasingly sceptical. “This incoherence has been particularly glaring this year,” says Ruchi Chaudhury, an associate at the Centre on the Death Penalty. Clearly, the legislature’s faith in the effectiveness of the death penalty is at odds with the realities of the criminal justice system.

By law, courts are meant to weigh aspects beyond the nature of the crime while imposing the death penalty. But all levels of the judiciary have struggled to apply the principle uniformly

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