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Posts Tagged ‘Capital punishment

Is the death penalty about to die?

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The Madras High Court‘s order last week staying the execution of former prime minister Rajiv Gandhi‘s three killers has triggered a fresh debate on the desirability of the death penalty in India. The court also asked the government to explain why it took 11 years for the president to reject the trio’s mercy pleas.

President Pratibha Patil rejected them in early August. The Tamil Nadu assembly then passed a unanimous resolution requesting the president to reconsider her decision. Politicians in Punjab are making a similar demand for Devender Pal Singh Bhullar, convicted of a 1993 terror attack in Delhi that claimed several lives. Jammu and Kashmir chief minister Omar Abdullah reflected the sentiment in his state when he tweeted that had his state assembly passed a similar resolution about Parliament attack convict Afzal Guru reactions would not have been so muted.

The BJP favours the death penalty for such criminals, but Congress leaders have been airing their personal views for or against it. The Indian intelligentsia – the media, academics and the judiciary is also divided about the issue.

A look at the debate:

Punishment is a natural response to crime
This principle is almost universally accepted and that letting off criminals can result in vigilante justice. Also, the punishment has to be proportionate to the degree of wrongdoing and mitigating circumstances have to be considered while deciding the quantum of punishment. It goes without saying that the accused will be given a fair chance to defend himself/herself.

But various societies in different parts of the world react to crime in different ways. While some, such as a few Arab countries, choose retributive punishment of “an eye for an eye”, others have deterrent punishment. Of late, there has been a shift towards restorative and reformist approaches to punishment, including in India.

Death Penalty in India
Capital crimes are murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government and abetting mutiny by a member of the armed forces. In recent years, the death penalty has also been imposed under a new anti-terrorism legislation for people convicted of terrorist activities.

Is the judiciary becoming averse to the death penalty?
Section 354(3) of the Criminal Procedure Code (CrPC), which was added to the Code in 1973, requires a judge to give “special reasons” for awarding death sentences. In 1980, in the Bachan Singh case, the Supreme Court propounded the “rarest of rare” doctrine and since then, the life sentence is the rule and the death sentence the exception.

But recently, the Supreme Court refused to impose the capital punishment in the Graham Staines, Jessica Lall and Priyadarshini Mattoo murder cases on the ground that these did not fall within the category of “rarest of rare.” Is the judiciary becoming averse to capital punishment?

According to senior advocate KTS Tulsi, the vice chairman of the Law Commision of India, “India has found a perfect balance by retaining the death penalty as a deterrent, yet invoking it only in exceptional cases. While the deterrent effect is maintained, the possibility of an erroneous execution is minimised. Compared with China, Japan, Arab countries and the US, the use of capital punishment in India has been minimal.”

Moratorium on the death penalty
In December 2007, India voted against a UN resolution calling for a moratorium on the death penalty. But in effect, there has been a moratorium on the death penalty in India. Since 1995 there has been only one execution, that of Dhananjoy Chatterjee, in August 2004.

The judiciary appears to be hesitant in awarding the death penalty. The executive has disposed of several mercy petitions in the past few months, but around 20 such pleas, including that of Afzal Guru, are still pending before the president.

According to Amnesty International, in India, at least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced, but not executed, to death.

Rajiv Gandhi Killers’ case is a test case
The Rajiv Gandhi Killers’ case is going to be a test case for death penalty in India. Whatever be the Madras HC decision, the matter is bound to go to the Supreme Court, which could lay down guidelines for timely disposal of mercy petitions. If the court rules that inordinate delay is a ground for converting a death penalty to life imprisonment, then it would have bearing on all pending mercy petitions, including that of Afzal Guru.

World moving towards abolition of death penalty
According to Amnesty International, more than two-thirds of countries in the world have now abolished the death penalty in law or practice. Ninety-six countries have abolished capital punishment for all crimes while nine have done away with it for ordinary crimes. Further, 34 countries have abolished it either in law or in practice. Only 58 countries retain this extreme form of punishment.

Should India abolish the death penalty?
“No”, says former additional solicitor general of India Vikas Singh. “Generally, a punishment should be aimed at reforming the criminal. But in some cases, such as in the Rajiv Gandhi assassination case or Parliament attack case, you have to give a deterrent punishment, for the simple reason that you can not reform these criminals. Can you reform Kasab (26/11 convict)?”

But Suhas Chakma, the director of the Asian Centre for Human Rights, disagrees. “The death penalty has failed to act as a deterrent against any crime. It’s nothing but retribution. Such medieval justice does not reflect the ethos of Mahatma Gandhi. India should abolish the death penalty and join the league of civilised countries.”

COURTESY: HINDUSTAN TIMES

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Kasab ka Hisaab – Beyond the Death Sentence

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Mehak Budhrani in The Chakra

This century, the word ‘K’ has dominated India in the arenas of Business, Government and especially Television. But only one ‘K’ shook India within hours – “Kasab”, the only surviving terrorist of 26/11. On the night of November 26, 2008 a war against India was waged which went on till the afternoon of November 29. Only Kasab was captured alive while the other nine terrorists were killed by the security forces. The Kasab trial went on for two years before a death sentence was passed to him on five counts of murder, conspiracy to murder, waging war against the country, abetting murder and indulging in terrorist activities, on the 6th of May, 2010. Kasab was also awarded life imprisonment on five other counts, which included attempt to murder, criminal conspiracy and violation of the Explosive Substances Act. Under the law, death sentence awarded to an accused by trial court comes up before the high court for confirmation. The High Court confirmed the order passed by the trial court on 21st February 2011.

Until the verdict was passed, during the two years, there was a huge uproar among the Indians which was justified. A national newspaper reported that “The cash-strapped Congress-led Democratic Front government in Maharashtra has been spending well over Rs 2 lakh a day on India’s priciest prisoner”. (http://articles.economictimes.indiatimes.com/2010-05-05/news/27590949_1_arthur-road-jail-ajmal-kasab-jail-premises)

The Government of India gets money in the form of taxes paid by the citizens of India. The people were infuriated as to why their money was being spent for the protection and treatment of a perpetrator when there was enough evidence against him in the form of CCTV camera footage. The world witnessed the worst form of fear during 9/11. Osama did not go unpunished. He was brutally killed by the American Security Forces in Abbotabad, Pakistan. Don’t we wonder why Osama wasn’t given a chance to be tried by the American Jury? Then why is the Indian Government treating the Kasab issue so lightly? Shouldn’t he be dealt with in the same way the Americans dealt with their terrorist? But our Government claims that they are happy that Kasab was tried in a normal court of law and then given the death sentence. In a way, our democratic spirit is being enshrined.

Even though there was a sense of relief amongst the country and the families of those who were killed in the attack, when the death sentence was passed, there is another thought that confronts us. Do suicide bombers and terrorists really fear death? Kasab knew what he had come for and also knew his fate. Then will the death sentence create a sense of fear in his followers or will it make him a martyr? Surely such a subversive act must be punished in the most severe way. Special Public Prosecutor in the case, Ujjwal Nikam, opinionated that “Kasab is a killing machine and the manufacturing factory of such killing machines are still in Pakistan”. We all know that Kasab’s family was promised Rs 1.5 lakh for his sacrifice by the LeT. If such atrocious acts are awarded and such fanatics are treated as martyrs, then is a death penalty the right approach?

The passing of the death sentence opens up the following avenues for Kasab:

1. Appeal to the Supreme Court.

2. If the Supreme Court upholds the judgment of the High Court and the Lower Court, Kasab can file for a clemency plea to the President of India.

If Kasab files for a plea in the Supreme Court, and if the Supreme Court grants a life sentence, then will the Government spend some more money for the terrorist?

Capital Punishment in India is given in the rarest of rare cases. Currently, there are more than 100 people who have been awarded the death sentence but are in the queue to be executed.

Article 72 of the Indian Constitution gives the President the powers to reduce the sentence or grant a pardon to a convict, especially those involving capital punishment. According to the Ministry of Home Affairs, between 1995-2006, the President has rejected seven mercy petitions and commuted two, while between 1985 to 1994 it rejected 41 mercy petitions and commuted four. As many as 173 such petitions were received between 1975 to 1984 of which 121 were rejected and 52 commuted. However, a maximum of 543 mercy petitions were commuted between 1965 to 1974 during which 491 such petitions were rejected. According to Amnesty International figures at least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not yet executed). Looking at these figures, if Kasab is given an option to ask for mercy, how long will it be before he recompensates for his doings? The procedure for a Clemency plea (mercy petition) is long before final justice actually takes place. The clemency plea could lead to:

1. Grant of Pardon

2. Rejection of Plea

This again would put Kasab in the queue before the other convicts are executed. This is now a political issue as we have to wait and watch if the Government of India executes this sentence expeditiously or will allow the queue system to continue.

The question to raise here is, is a death penalty or a life sentence enough for Kasab or should he be treated as mercilessly as he acted? Is this act of leniency on part of the Government of India assuring terrorists such as Kasab that they will be treated ordinarily and hence lead to recurring attacks? These issues are yet to be dealt with and answers awaited for. But the real issue which needs to be highlighted is that, is the death penalty really a deterrent for any terrorist?

Fundamental rights violated during Emergency: Apex Court

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New Delhi: The Supreme Court has admitted that it had violated the fundamental rights of citizens during the 1975 Emergency, and in an unprecedented move commuted to life imprisonment the death sentence, earlier upheld by it, of a man who murdered four members of a family.

A bench of Justices Aftab Alam and Asok Kumar Ganguly in a judgement took a view that the majority decision of a five-member Constitution bench upholding the suspension of fundamental rights during Emergency in the ADM Jabalpur V.Shivakant Shukla case (1976) was erroneous.

“There is no doubt that the majority judgement of this court in the ADM Jabalpur case violated the fundamental rights of a large number of people in this country,” Justice Ganguly observed.

The judge made the observation while setting aside his own judgement of May 5, 2009 along with Justice Arijt Pasayat (since retired) wherein the apex court had upheld the death sentence of Remdeo Chauhan alias Rajnath Chauhan who murdered Bhabani Charan Das and three members of his family on March 8, 1992.

“The instances of this court’s judgement violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.

“We can remind ourselves of the majority decision of the Constitution Bench of this court in Additional District Magistrate(ADM) Jabalpur V. Shivakant Shukla reported in (1976).

“The majority opinion was that in view of the Presidential order dated 27.6.1975 under Article 359(1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a high court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention (MISA) on the ground that the order is illegal or malafide or not in compliance with the Act,” Justice Ganguly observed.

The bench pointed out that in the 4:1 ruling that it was Justice Khanna who rightly gave a dissenting judgement by holding that “under clause(8) Article 226 under which the high courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the high court to issue writs in the nature of habeas corpus during the period of emergency.”

The apex court then recalled the comment of former Chief Justice MN Venkatachalliah in the Khanna Memorial Lecture on February 25, 2009 that the majority decision in the Emergency case be “confined to the dustbin of history”.

In fact, the dissent of Justice Khanna became the law of the land when, by virtue of the 44th Constitutional Amendment, Articles 20 and 21 (personal liberty) were excluded from the purview of suspension during Emergency. The bench of Justices Alam and Ganguly, giving a verdict on the second review petition filed by the convict, also set aside the apex court’s earlier judgement that NHRC had no power to recommend to the Governor the commuting of the sentence to life imprisonment after the death penalty had already been upheld by it.

Chauhan was awarded death sentence by a sessions court in Guwhati for the murder of the four persons after holding that the incident fell under the “rarest of rare” category.

The Guwhati High Court upheld the sentence. Later, a two-judge bench of Justices K T Thomas and R P Sethi of the Supreme Court had on July 31, 2000 upheld the death sentence.

All the three courts rejected the plea of Chauhan that he cannot be awarded the death penalty as he was only 16-year-old at the time of committing the crime.

The courts rejected the plea after extensively examining the medical evidence which indicated that Chauhan was over 20 years of age and hence not entitled to immunity from death penalty available to a juvenile under the Juvenile Justice Act of 2000.

A three-judge bench of Justices KT Thomas, RP Sethi and SN Phukan, hearing the review petition, had on May 10, 2001 by a majority decision dismissed his appeal, though one of the judges took the view that he could be awarded a life term since there was an element of doubt about his juvenile status.

However, following an article published in a journal, the NHRC intervened in the matter and asked the Assam Governor to examine the case of Chauhan for commuting his sentence to life imprisonment in view of the fact that there was an element of doubt about his juvenile status. The state government accordingly commuted the death penalty to life imprisonment.

The family members of the deceased filed a fresh petition in the apex court.

The apex court by a judgement dated May 8, 2009, had slammed the NHRC for setting aside a judicial order and said the commission had no such powers to interfere.

However, Chauhan filed a second review petition challenging the apex court’s judgement.

Upholding Chauhan’s plea, the apex court said, “If we look at Section 12(j) of the 1993 Act, we find that it confers on NHRC such other functions as it may consider necessary for the promotion of human rights.”

“One must accept that human rights are not like edicts inscribed on a rock. They are made and unmade on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of

fluidity. Categories of human rights, being of infinite variety, are never really closed,” Justice Ganguly said writing the judgement.

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