Capital punishment: South Asia
This is a collection of articles archived for the excellence of their content.
2008: SC bench split on Swamy Shraddhanand
The Times of India, Jul 29 2015
Even in 2008, SC bench was split on confirming death
Two judges of the apex court may have differed on the procedure followed in hearing Yakub Memon's curative petition but there has been precedence where an apex court bench had given conflicting opinions on confirmation of death penalty , raising questions on the capital punishment jurisprudence. In 2008, a two-judge SC bench in Swamy Shraddhanand vs Karnataka was divided over confirming death penalty, though both the trial court and the high court were unanimous on the case.
The SC then constituted a three-judge bench to decide the matter. The larger bench stayed the death penalty for conflict of opinion in the twojudge SC bench. The threejudge bench then commuted the sentence to life imprisonment. The bench observed that life imprisonment, subject to remission, was grossly disproportionate and inadequate to the crime committed.This laid the foundation of penal option of imprisonment for the rest of convict's life without remission.
The Swamy Shraddha nand judgment helped death convicts escape the noose in many other cases such as Haru Ghosh vs State of WB, UP vs Sanjay Kumar, Sebastian vs State of Kerala, Gurvail Singh vs State of Punjab. In all these cases, death penalty was commuted to full life or determinate number of years.
In the Swamy Shraddhanand verdict, the SC had observed that where the judges “may feel somewhat reluctant in endorsing the death penalty... the court would take recourse to the expand ed option“. The expanded option being jail for the rest of life without remission. Making a case for abolition of death penalty , a paper of the Law Commission had observed the SC had in the past admitted its own death penalty jurisprudence was arbitrary .It quoted the Bacchan Singh vs State of Punjab case of 1980, which established the `rarest of rare' doctrine, where the SC had admitted that death penalty was awarded arbitrarily .
2000-12: statewise comparisons
The Times of India, Sep 09 2015
Death sentence rate highest in Delhi, J&K
A person convicted of murder in Delhi or Jammu & Kashmir has a higher probability of being handed the death penalty than anywhere else in India. In J&K, the likelihood is 6.8 times higher than the national average and in Delhi a convict is six times more likely to be put on death row.
These stark differences in sentencing, based on NCRB data, were revealed in a study called `Hanging in Balance: Arbitrariness in Death Penalty Adjudication in India', cited by the Law Commission as “another axis of disparity in death penalty jurisprudence“. A man convicted of murder in Jharkhand is 2.4 times more likely to get the death sentence than the national average while the possibility increases to 2.5 times in Gujarat, three times in West Bengal and 3.2 times in Karnataka, according to a study that looked at the rate of imposition of death sentences for murder convictions in various states.
The differences among many neighbouring states were found to be high. A mur der convict in Karnataka is 5.8 times as likely to get the death sentence compared to TN. A convict in Gujarat is again 5.8 times more likely to get death than one in Rajasthan. Similarly, Maharashtra sends murder convicts to death row 2.9 times more frequently than MP.
In absolute numbers, UP sentences most number of persons to death row. But in terms of the proportion of death sentences to murder convictions, it is almost at par with the national average. In Karnataka, the second largest contributor to death row sentencing, the death sentence rate was 3.2 times the national average. Citing this disparity, the Law Commission headed by Justice (retired) A P Shah has recommended gradual abolition of death penalty with the exception of terror cases.
2000-13: Legal aid for economically backward persons sentenced to death
The Times of India, Oct 05 2015
33% of 69 who were awarded death by SC got amicus aid
Report urges caution on their `overuse'
Over a third of the 69 people sentenced to death by the Supreme Cour between 2000 and 2013 had amicus representation (where the court appoints an advocate for an unrepresented accused).
- The SC had, in three re cent cases (Santosh Kumar Bariyar vs State of Maha rashtra, Sangeet vs State o Haryana and Shanker Kisan Rao Khade vs Maharashtra) acknowledged error in grant ing death penalty in 16 cases involving 20 individuals. Dis turbingly, in over half these cases, the accused were rep resented by amici curiae.
These instances have been cited in a report on death penalty to strike a note of caution regarding “over representation“ by amici curiae, indicating that effective legal aid continues to be a concern for the socially and economically backward.
Earlier, TOI had frontpaged an article on how the law was loaded against the poor and minorities. Data from interviews with 373 death row convicts over a 15year period revealed that three-fourths of those sentenced to death belonged to backward classes and religious minorities, while 75% were from economically weaker sections.
Another study cited by the Law Commission in its report on death penalty , `Hanging in Balance: Arbitrariness in Death Penalty Adjudication in India', reaffirms this bias against the socially-economically disadvantaged. The study shows that out of 281 people awarded the death penalty between 2000 and 2013, 128 received it at the hands of trial courts alone.Both the high court and the SC either commuted the sentence or acquitted the person in these cases. Of these, 7.03% were represented by amici curiae.
In the same period, 79 convicts sentenced to death by both the trial court and the high court were either acquitted or had their sentences commuted by the SC. Amicus representation among them stood at 22.8%. Finally, of the 69 people given death penalty by the SC itself, 36.2% had amicus representation.
“The over-representation of amici curiae in cases relating to error and to the imposition of death penalty is a cause for caution, not least because it may signal the impact of structural and systemic biases on the imposition of death penalty ,“ the Law Commission report said.
“Merely because a person is represented by amicus before the SC does not imply that the person did not get good legal representation. However, the fact that an accused is represented by amicus does indicate the person's economic circumstances, the ability to hire quality legal representation before trial courts, and to ensure that a robust record is created at the trial stage level, is likely to be compromised in such instances,“ it added.
“The impact of the lack of access to quality legal representation particularly at the trial stage is also likely to be compounded by the existence of inconsistencies in the death penalty jurisprudence, which result in ill-trained lawyers having to argue before inadequately guided judges on an incoherent area of law,“ the report added.
2014: Death sentence
Apr 10 2015
A recently released report of Amnesty International on death sentences and executions in 2014 says that capital punishment is being used at an alarming rate because of perceived threats to states' safety because of terrorist activities and internal instability. For instance, Pakistan lifted a six-year moratorium on the death penalty after the Peshawar school attack. The organization estimates that at least 2,466 death sentences were awarded in 2014, 28% more than in 2013. In India, at least 64 were awarded the death sentence in 2014, but no executions were carried out Source: Amnesty International, reliable data not availabe for China, North Korea and South Sudan
Declining trend in 2015, 2016
Convicts can not be hanged secretly and hurriedly: SC
India Today May 28 2015
`They Must Be Allowed To Exhaust All Legal Remedies, Meet Family'
Condemned prisoners also have a right to dignity, the Supreme Court has said holding that execution of death sentence cannot be carried out in an arbitrary , hurried and secret manner without allowing convicts to exhaust all legal remedies and meet family members. “Right to life under Article 21 of the Constitution does not end with the confirmation of the death sentence. Even in cases of death row convicts, their right to dignity must be protected,“ said a bench of Justices A K Sikri and U U Lalit while quashing the execution warrants of a young woman and her lover, convicted for killing seven members of her fam ily, including a 10-month-old baby , in Uttar Pradesh in 2008.
The observations assume significance in the context of the hue and cry raised by human rights activists after Parliament attack convict Afzal Guru was hanged in the capital's Tihar jail in 2013 even before his family members could get the intimation.
In the case of the couple -Shabnam and Saleem -the bench said, “We find that death warrant was signed by the sessions judge in haste without waiting for convict to exhaust all legal remedies.“ It pointed out that the condemned prisoners can file a review petition before the SC and can also seek mercy from the the President or governor.
Referring to the Allahabad HC order on the procedure to be followed for execution of death sentence, the bench said that principles of natural justice must be followed and sufficient notice given to the convict before the issuance of death warrant to enable himher to pursue legal recourse and have a final meeting with family members. In cases where a convict is not in a position to get legal assistance, legal aid must be provided, it said.
The bench expressed surprise on the “unwarranted“ haste with which the Amroha court issued execution warrants, just six days after the SC awarded death to the couple on May 15 for wiping out the woman's entire family to remove opposition to their affair and grab family property.
The apex court said the sessions court issued the warrant without waiting for the mandatory 30 days to allow death row convicts to avail judicial remedy of filing petitions for a review.
SC approves death sentence in kidnapping for ransom
The Times of India, Aug 22 2015
Death sentence okay in kidnapping for ransom: SC
The Supreme Court upheld the constitutional validity of Section 364A of Indian Penal Code making kidnapping for ransom an offence punishable by even death sentence saying the provision is crucial as terrorists resort to such activities to force governments to meet their demands. A three-judge bench of Justices T S Thakur, R K Agrawal and Adarsh Kumar Goel said the provision was incorporated as it was not only criminals but terrorist organizations which commit such crimes.
“Given the background in which the law was enacted and the concern shown by Parliament for the safety and security of the citizens and the unity , sovereignty and integrity of the country, the punishment prescribed for those committing any act under Sec tion 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional,“ it said.
The bench, however, said such extreme punishment be awarded in the rarest of rare cases and only where a terrorist was involved in kidnapping.
“Where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where courts may consider awarding the extreme penalty . But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman,“ the bench said.
Death penalty and government
Dhananjay Mahapatra | TNN
FROM THE ARCHIVES OF ‘‘THE TIMES OF INDIA’’: 2008
SC stand against terror often negated by govt
Every single death sentence awarded by Supreme Court makes news. The extreme penalty is handed down only in rarest of rare cases relating to heinous crimes which reflect the nadir of human depravity and senselessness.
Death penalty is awarded after careful scrutiny of evidence by all three courts — subordinate, high court and Supreme Court. But, that is not the end of the road for a condemned convict. He could still send mercy pleas to the President or the governor, as the case may be, and bide his time during its pendency. In the courts presided over by terrorists, however, legal procedures are redundant. Death sentences get awarded to unknown number of innocents the moment they assemble a bomb and plant it in crowded places. The dance of death unfolds in public at the press of a remote. For, the extreme law followed by terrorists has no chapter on mercy jurisprudence.
Every blast leaves children orphaned, women widowed and parents to grieve a lifetime over their lost children. Communal harmony gets ruptured. A community gets slandered. Translated in the law of the land, this denotes mass murder, treason and spreading disharmony in society, all of which under Indian Penal Code are categorised as heinous crimes. What should, then, be the punishment for terrorists indulging in these acts simultaneously?
Since 1987, the Supreme Court has made a strong pitch for adequate punishment for terrorists. In the Mahesh vs State of MP [1987 (2) SCR 710] case, it had refused to reduce the accused’s death sentence to life imprisonment.
It said, “It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give lesser punishment for the accused would be to render the justice system of the country suspect. The common man will lose faith in the courts. In such
cases, he understands and appreciates the language of deterrence more than the reformative jargon.”
This paragraph is quoted in another oft-referred judgment — Sevaka Perumal vs State of Tamil Nadu [1991 SCC (3) 471]. The latter is a reference point for many a judgment of the Supreme Court, right upto this year. In Perumal case, the apex court said a murder committed due to deep seated personal rivalry may not call for death penalty. “But, an organised crime or mass murder of innocent people would call for imposition of death sentence as deterrence,” it had said.
Undue sympathy and imposing inadequate sentence would do more harm to the justice system, which would lead to loss of public confidence in the efficacy of law, the court had said. “It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed,” it had said.
The courts may have eschewed “undue sympathy” in awarding death sentence to terrorists — be it Davinder Pal Singh Bhullar in the Maninderjit Singh Bitta bomb attack case or Mohd Afzal in the Parliament attack incident. But, when it comes to executing the death penalties, the government, irrespective of the party in power, invariably develops cold feet.
This political cold feet appears to have erased the deterrent element that the apex court stressed so strongly, time and again, while making it a point to award adequate punishment for crimes. This dithering on government’s part, as India gets increasingly targeted by terrorists, could have a disastrous impact on the nation.
The SC had said, “Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges.”
Terrorism and bomb blasts have posed a grave new challenge to criminal law administrators — the government and the courts. The courts appear to be on course correction mode by applying deterrence jurisprudence. Will the governments follow suit?
The Mahabharata on vengeance
The Times of India, Sep 13 2015
Death penalty: Life can be far worse, says the Mahabharata Crime and punishment is the central theme of Ashwatthama's story in the Mahabharata. By all accounts, Ashwatthama was a fine young man --confident, modest and fair-minded. The son of the great teacher, Drona, he grew up in the privileged company of princes. When war is declared, he finds himself on the wrong side. He fights with integrity and in the end accepts the defeat of the Kauravas. He is outraged at the deceitful death of his father, however, and vows revenge. He sets fire to the victorious, sleeping armies of the Pandavas. His night-time massacre is a deed so repulsive that it turns the mood of the epic from martial triumphalism to dark, stoic resignation.
When Draupadi, Pandavas' queen, learns that all her children died in the night massacre, she cries for vengeance. When Ashwatthama is finally captured, the Pandavas debate over the right punishment for his horrendous crime.Death would be too kind, they agree. Krishna ultimately pronounces the sentence: `For three thousand years you will wander on this earth, alone, and invisible, stinking of blood and pus.' Indians have long felt ambivalent about the death penalty; hence, very few executions have taken place since Independence (57 in 68 years).Most of the world has abolished it -only 36 have not and this includes India and the US. The UN resolution says that it `undermines human dignity'. But I am not convinced. I would argue that retaining the death penalty, in fact, enhances human dignity . The most serious argument for its abolition is that it is almost impossible to implement it fairly; why have we not used it, for instance, against the ghastly crimes of the Naxalites? Whether Krishna's sentence meets the test of proportionality , the Mahabharata has the right idea -keeping a person alive, brooding and suffering over his deed, is a far greater punishment than death.