India

Death penalty for Murder; instigating a child’s suicide; treason; acts of terrorism; a second conviction for drug trafficking. For more information see Capital punishment in India

India: Law panel drafts paper, favours abolition of death penalty

The Law Commission is set to recommend abolition of death penalty in India except for terror convicts, media reports said on Friday, a move rights activists say is long overdue in the country.
India is one of 59 countries in the world where capital punishment is still awarded and activists have been demanding its abolition, saying death penalty had no place in civilised society.
The issue had generated intense debate before and after the hanging in July of Yakub Memon, the sole Mumbai blasts convict to be executed.
A 272-page draft report of the Law Commission was in favour of speedy abolition of the death penalty from the statute books, except in cases where the accused is convicted of involvement in a terror case, the Indian Express reported.
The Law Commission had recommended retention of death penalty in 1962.
“The Commission suggests that the death penalty be immediately abolished for all crimes other than terror offences. At the same time, for terror offences a moratorium as regards sentencing and execution be immediately put in place. This moratorium can be reviewed after a reasonable period,” the report quoted the draft as saying.
The panel also hoped that the “movement towards absolute abolition will be swift and irreversible”.
The commission, headed by justice (retd) AP Shah, is likely to submit its report next week to the Supreme Court which had asked the panel to study the issue.
A copy of the report will also be handed over to the Union law minister as any call on changes in penal provisions has to be taken by Parliament.
The panel’s term expires on August 31. According to the report, the commission is of the view that death penalty has not served its intended purpose of acting as a deterrent to crimes or criminals.
“The quest for retribution as a penal justification cannot descend into cries for vengeance,” the draft paper said.
The panel had held wide-ranging discussions with many different sections including political parties.
Former president late APJ Abdul Kalam is among the people who had earlier supported abolishing death penalty while responding to a consultation paper of the Law Commission.
Ahead of Yakub Memon’s hanging after a dramatic late-night rejection of his final mercy, a group of activists had written to President Pranab Mukherjee seeking a stay on his execution.
Source: Hindustan Times, August 28, 2015

 

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Death Penalty for Heinous Crime Not Barbaric, Says Supreme Court

NEW DELHI:  In the wake of the debate over the death penalty following the execution of Mumbai attack convict Yakub Memon, the Supreme Court has said capital punishment is not inhuman or barbaric and will not violate the right to life and liberty in heinous crimes.

The observation came on Friday from a three-judge bench which was hearing the appeal from a murder case convict who has been given the death sentence.

Vikram Singh, who had been convicted for abducting and killing a 16-year-old, had challenged his death sentence, arguing that capital punishment is applicable only to terrorists.

The bench of Justices TS Thakur, RK Agrawal and AK Goel said, “A sentence of death in a case of murder may be rare, but if the courts have found it is the only sentence that can be awarded, it is difficult to revisit that question…”

What was important, the top court said, was that the punishment should be should be proportionate to the crime.

“Death penalty in a case of kidnapping or abduction will not qualify to be described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution,” the court said.

While death penalty is awarded in the rarest of the rare cases, the last few persons to be executed were people convicted on terror charges – Afzal Guru, who was convicted in the 2001 Parliament attack case and Ajamal Kasab, the lone Pakistani terrorist caught for the 26/11 attacks in Mumbai.

But it was Yakub Memon’s execution that not only triggered questions from the civil society about his punishment, but also on the larger debate on death penalty.

Vikram Singh had been arrested for the abduction and murder of school student Abhi Verma in 2005.

He was awarded the death sentence by the Punjab and Haryana High Court, which was later confirmed by the Supreme Court.  He had challenged the death sentence given for the crime he was booked under – kidnapping for ransom (Section 364A).

Punishments under the section include death sentence, life imprisonment and a fine.

India: ‘We still need to continue with death penalty

Amid the debate over death penalty against the backdrop of last month’s execution of Mumbai serial blasts convict Yakub Memon, former Chief Justice of India K G Balakrishnan today said he favoured its continuance.
Balakrishnan, who attended the convocation ceremony at Sumandeep Vidyapith here, told PTI that India hadn’t yet reached the stage where capital punishment can be done away with.
“The capital punishment is awarded in the rarest of the rare cases, and there are adequate safeguards provided in the law,” he said.
“India has not reached the stage where death punishment could be abolished. I personally feel that the death penalty should continue. It has got a very great deterrent effect on the society,” said the former chairman of the National Human Rights Commission.
While 24 states in the country have set up the State Human Rights Commission, the remaining ones, including Uttar Pradesh, West Bengal, Madhya Pradesh and the north eastern states, would set up the rights body at the earliest, he hoped.
Source: Press Trust of India, August 17, 2015

 

India’s Death Penalty

July 30 was a somber day for India — a day that called into question the application of the death penalty in a country whose criminal justice system is stacked against minorities, the poor and those who do not have the backing of powerful political interests.

On that day, Yakub Memon was executed. The same day last year, Maya Kodnani was released from jail. Just three years ago, Ms. Kodnani was sentenced to prison for 28 years for her role in an attack in Gujarat that left at least 94 people, all Muslims, dead during riots in 2002. She was also, however, a top lieutenant in the Gujarat state government once headed by the current prime minister, Narendra Modi. Mr. Memon had no such political connections. An accountant, he admitted to playing an accessory role in the 1993 bombings in Mumbai, masterminded by his brother “Tiger” Memon and Dawood Ibrahim, a Mumbai underworld boss. The bombings, which took the lives of 257 people and injured some 700 others, were set off in revenge for riots that engulfed the city in December 1992 following the destruction by Hindu militants of the Babri Mosque in the Indian city of Ayodhya. More than 1,000 people died in the Mumbai riots, most of them Muslims.

Mr. Memon’s execution has now set off a vigorous debate in India on capital punishment. While more than 1,300 Indians were condemned to die by Indian courts in the decade between 2004 and 2013, only three individuals have been executed. But the sentences reflect huge disparities in the treatment of the accused in the justice system. A study conducted by the National Law University in New Delhi, working with India’s Law Commission, has found that nearly all — 93.5 percent — of those sentenced to death are low-caste Dalits or members of other minorities. Most are poor. Many are illiterate. Few received adequate legal representation.

Such gross injustice should weigh heavily when India’s Supreme Court receives a full report on the death penalty expected from the Law Commission next month. In the meantime, the government should reinstate the moratorium on the death penalty while India works toward joining most of the world in abolishing state-sanctioned killing.

How India’s stand on death penalty changed between 2 killings

After the British executed Bhagat Singh and his comrades, the nation resolved to do away with capital punishment. The mood changed on January 30, 1948 – the day Gandhi was killed.
On March 23, 1931, when the British government sent Bhagat Singh and his comrades Sukhdev and Rajguru to gallows, millions all over India mourned. Angry condolence meets, hysterical processions and strikes in factories, schools and colleges crystallised a national consensus that Independent India would have no place for capital punishment.
The mood was reflected in a forthright stand that the Indian National Congress took a week later. In its three-day Karachi session that began on March 29, 1931, the Congress passed a series of resolutions on Fundamental Rights and Duties, Labour, Taxation and Expenditure, and Economic and Social Programme.
Clause XIII of the resolution on Fundamental Rights and Duties declared: “There shall be no capital punishment.”
The Karachi resolution, which was drafted by Jawaharlal Nehru and revised by Mahatma Gandhi, is significant because it provided the implicit socio-juridical basis upon which the modern Indian nation was to be founded and whose spirit reflected in the Indian Constitution. The All India Congress Committee that met on August 6-8, 1931 made this point clear by declaring that “any Constitution which may be agreed to on its behalf should provide for” the Karachi Resolution. Indeed, the Constituent Assembly, which deliberated between December 9, 1946, and November 26, 1949, incorporated most of aspects of the Karachi Resolution in the Indian Constitution.
But by the time the Constituent Assembly took up the issue of capital punishment, the adherents of Hindutva had sufficiently disoriented the mood of the nation by brutally killing Mahatma Gandhi on January 30, 1948. The culture of compassion that had created a national consensus against capital punishment in 1931 got sabotaged by the assassination.
Sanctity of human life
Thus, when on November 29, 1948, ZH Lari, a Muslim League member of the Constituent Assembly from the United Provinces (as Uttar Pradesh was called then), moved an amendment to abolish the capital punishment, many of the Constitution makers were horrified. The assassination of Gandhi by Nathuram Godse, an adherent of Hindutva, had hardened the attitudes of many of the Congress leaders who in 1931 had so enthusiastically backed the resolution against capital punishment.
Moving the amendment in the Constituent Assembly on November 29, 1948, Lari laid out 3 reasons why capital punishment should be abolished:
“The 1st consideration is that human judgment is not infallible. Every judge, every tribunal is liable to err. But capital punishment is irrevocable. Once you decide to award the sentence, the result is that the man is gone. […] The 2nd consideration is that human life is sacred and its sanctity is, I think, accepted by all. […] A man’s life is taken away if there is no other way to prevent the loss of other human lives. But the question is whether capital punishment is necessary for the sake of preventing crimes which result in such loss of human lives. I venture to submit that at least thirty countries have come to the conclusion that they can do without it and they have been going on in this way for at least 10 years, or 20 years, without any ostensible or appreciable increase in crimes. […] The 3rd consideration is that this is a punishment which is really shocking and brutal and does not correspond with the sentiments which prevail now in the present century.”
While concluding, Lari said: “Lastly I would submit that the reformative element in punishment is the most important one, and that should be the dominant consideration.”
After Lari moved the amendment, Vice President HC Mookerjee, who was in the chair, adjourned the House for the day.
Voices of opposition
The next day, on November 30, 1948, two members of the Constituent Assembly – both from the Indian National Congress – spoke on the issue and opposed the amendment seeking abolition of death penalty. The 1st, Congress leader from Bihar Amiya Kumar Ghosh, kept his opposition muted, wavering between technical and substantive reasons for his opposition to the amendment. The 2nd speaker, K Hanumanthaiah from Mysore, minced no words and even referred to Godse while arguing against Lari’s amendment.
In his argument, Ghosh said: “I think that with the growth of consciousness, with the development of society, the state should revise a punishment of this nature but the proper place of doing such a thing is not the Constitution. We can do it by amending the Indian Penal Code where such penalty is prescribed for different offences.”
He then added: “We are now passing through a transitional period, serious problems are confronting us, different sorts of situation are arising every day, and so it is quite possible that at times the State may require imposition of such grave penalties for offences which may endanger it and the society.”
Hanumanthaiah’s argument was straightforward. “If every man who takes away the life of another is assured that his life would be left untouched and it is a question of merely being imprisoned, probably the deterrent nature of the punishment will lose its value. […] Therefore, if a man who kills another is assured that he has a chance of being released after seven or eight or ten years, as the case may be, then everybody would get encouragement to pursue the method of revenge, if he has got any. For example, let us take this Godse incident.”
After a brief interruption by the Vice President, who asked him not to refer to “this particular individual”, Hanumanthaiah continued: “If a man who resorts to kill an important or a great man and if he is assured that he would be released after 7 years or 8 years, as the case may be, he would not hesitate to repeat what he has done, and conditions being what they are today, it would be very unwise from the point of view of the safety of the state and stability of society, to abolish capital sentence.”
Immediately after Hanumanthaiah concluded, Dr BR Ambedkar, chairman of the Constitution Drafting Committee, declared that he did not “accept the amendment”.
The atmosphere, left vitiated by Gandhi’s murder, was no longer conducive to carry forward the pledge the nation had taken following the execution of Bhagat Singh and his comrades. It’s ironical that the assassination of the man who said an eye for an eye makes the whole world blind proved to be the turning point when India opted for capital punishment.
Source: scroll.in, August 6, 2015
State trains hangmen for future executions
File photo of a gallows at the Old Central Jail in Bangalore
File photo of a gallows at the Old Central Jail in Bangalore
Prisons dept asked to prepare 3-4 constables for the job; Maha has 41 on death row.
The state home office has directed the prisons department to train at least three to four constables as hangmen to supplement the number of executioners available in the state, which has now dwindled to 1, and prepare for future hangings. The sole remaining executioner, whose last hanging was that of Ajmal Kasab, on November 21, 2012, was tasked with carrying out Yakub Memon’s death sentence, at Nagpur Central Jail last week.
“When hanging was common, we had many trained hangmen in our ranks, but they have since retired,” a senior home ministry official told Mumbai Mirror. “We’ve asked the prisons department to train more for future jobs. It’s a laborious process.”
Maharashtra has executed 19 convicts since independence, with a marked lull between August 26, 1995 when Sudhakar Joshi, convicted of robbery and triple murder, was executed at Pune’s Yerawada Jail, and Kasab’s hanging.
The home ministry official said the department had to “exercise a lot of caution during Kasab’s hanging as the executioner hadn’t carried out a death sentence for a very long time”. The state had transferred those officers who supervised the 26/11 terrorist’s hanging at Yerawada Jail to Nagpur so that Memon’s sentence could be carried out without trouble.
Senior superintendent of jails Yogesh Desai, who served in Yerwada, is now the senior superintendent of Nagpur Jail and Meeran Borwankar continues to hold the position of additional director of police (prisons). Both witnessed Kasab’s hanging and were acquainted with the procedure. However, the act of executing condemned prisoners lies in the ambit of just one man’s expertise, which led the home ministry to issue the directive seeking an increase in the number of executioners.
2 of Maharashtra’s jails are equipped for hanging convicts – Nagpur and Pune, while those at Dhule and Thane hold such facilities, but aren’t operational.
Anup Surendranath, of the Death Penalty Research Project, who resigned as the deputy registrar of the Supreme Court following Memon’s hanging, said the government should be joining the debate on how death penalty is administered in the country instead of sending out the message that it is in favour of capital punishment by training constables to serve as hangmen. “Even during the Yakub Memon process, the mood was very much in favour of death penalty,” he said. “But there are serious issues in terms of how we administer the death penalty. When a body like the Law Commission is seized of this issue, they should be joining the debate. This (training hangmen) will only send a message that we are going to hang more people in the near future. Now is not the time to say we are preparing to hang more people.”
Maharashtra has 41 people on death row, including 2 women. While some of them have been sentenced by lower courts and are awaiting appeals and mercy pleas, a few have expended all forms of judicial recourse. Among these are Renuka Kiran Shinde and Seema Mohan Gavit, known as the Gavit sisters, and the Shakti Mill rapists.
The sisters were convicted of kidnapping 13 children below the age of 5 and murdering at least 5. The president rejected their mercy plea in April 2014, but they approached the Bombay High Court in August 2014, citing “delay in execution”, after the Supreme Court commuted a few sentences citing this reason. The HC has stayed their execution.
The other prominent death row inmates are 3 men found guilty in the 2013 Shakti Mills gang rape case – they have appealed the sentence; Shivaji Shankar Alhat sentenced to death in 2003 for kidnapping and raping a minor over 20 times before strangling her to death in Junnar; and Rajendra Pralhadrao Wasnik, for raping and murdering a 3-year-old in March 2007.
Source: Mumbai Mirror, August 6, 2015

 

Amnesty International responds on Yakub Memon: Why India doesn’t need the death penalty

R Jagannathan’s article “Yakub Memon hanged: Why India still needs capital punishment” lays out a case for retaining the death penalty in India, with some pointers on how it can be applied more narrowly.
Much of Mr Jagannathan’s argument doesn’t hold water.
For one, he argues that the right to life is not sacrosanct when it comes to people guilty of terrorism, serial murders, or rape. The right to life, though, is the most fundamental of human rights, and like all human rights, it is something that inherently belongs to people not because of what they do, but because of the human beings they are.
The article claims that “keeping deadly killers alive in jail can tempt their compatriots to indulge in more killings”. But counter-terrorism officials around the world have often pointed out that individuals who are executed may be seen as martyrs, whose deaths can become a rallying point. Groups can also use executions as justification for retaliation, continuing the cycle of violence.
Second, Mr Jagannathan questions the argument that the death penalty must be abolished so that innocents are not executed. He suggests that rules for applying the death sentence be tightened so that it is imposed only when there is strong evidence. This is far-fetched. Even in countries such as the United States, which have well-resourced criminal justice systems, several innocent people have been sentenced to death. At least 155 death row prisoners in the US have been exonerated since 1973 – proof that no justice system is free from error, and the risk of executing the innocent can never be eradicated.
In India, the risk of executing someone in error is not minor. The Supreme Court has itself acknowledged that death sentences are handed out in a subjective and inconsistent way. Research by Amnesty International and PUCL has shown that whether people are sentenced to death depend on factors ranging from the quality of their lawyers to the idiosyncrasies of judges. Even the ‘rarest-of-rare’ test (which refers to the possibility of reform, and not as many believe, the gruesomeness of a crime) is by the Supreme Court’s own admission not always applied correctly. Former judges have pointed out that at least 2 people have been executed in India following faulty judgments.
Mr Jagannathan acknowledges that many people languishing on death row are from vulnerable backgrounds – something empirically proven recently by a National Law University study which found that over 75 % of those on death row came from economically weak sections of society. No doubt, poverty and arbitrariness can affect any criminal case. But this injustice is particularly unacceptable when there is a question of life and death.
Thirdly, the argument that the death penalty is not a deterrent, Mr Jagannathan claims, is weak because no punishment deters crimes involving killing. In this, he is partly right, because deterrence lies not in the severity of punishment, but its certainty. When the Constitutional Court of South Africa abolished the death penalty, it said: “The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness.”
Take the case of crimes involving sexual violence against women in India. When only 1 % of these cases are estimated to even be reported to the police, of which a fraction go on to be investigated, prosecuted, and end in conviction, the likelihood that any potential offender will be punished is miniscule. And it is here that we truly fail victims of violence, not in failing to impose death sentences at the end of a long and uncertain process.
Further, there is no compelling evidence that the death penalty deters crime more effectively than a life sentence. If authorities are serious about preventing crime and terrorism, they should strengthen the administration of justice as whole. Public safety is not delivered through executions.
Finally, the death penalty is needed to send a message to society, says Mr Jagannathan, and as retribution for wrongs inflicted. But the sending of this signal itself has nothing to do with the kind of punishment inflicted. Countries across the world send out this signal by handing out prison terms, the most serious punishment on their books. And we don’t even need to look to Europe or Scandinavia, as he suggests. India’s neighbours Nepal and Bhutan have abolished the death penalty. Neither has seen the ‘chaos and disaster’ which Mr Jagannathan warns of.
Mr Jagannathan admits that the death penalty must be used for a more specific set of crimes. While international law clearly sets abolition as the goal for countries which retain the death penalty, international standards say that where the death penalty does exist, it must only be imposed for crimes that involve intentional killing. In India however, the death penalty can still be handed out for offences including abetment of mutiny and kidnapping for ransom. Pending abolition, the government must ensure, at the very least, that crimes which don’t involve intentional killing are no longer punishable with death.
“We need the death penalty for our own reasons at this stage in our development as a civilised society”, concludes Mr Jagannathan. Here he underestimates India. As a society, it is time for us to stop pretending that revenge is justice. It is time to do away with the death penalty.
Source: firstpost.com, August 2, 2015. Shailesh Rai is the Senior Policy Advisor at Amnesty International India

India’s history of capital punishment in the last decade

According to the Article 21 of The Constitution of India, “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Capital punishments have always been a point of contention in the Judiciary, not only in India but also in most developed countries. The state’s authority is both questioned and established after the execution of a capital punishment. India has made its stance clear on the matter in December 2007, when it rejected UN’s plea for a worldwide moratorium on capital punishment which was further.

Despite India’s stance on capital punishments, the judiciary saves it for extreme violations of law. According to the Article 21 of The Constitution of India, “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Capital punishments have always been a point of contention in the Judiciary, not only in India but also in most developed countries. The state’s authority is both questioned and established after the execution of a capital punishment. India has made its stance clear on the matter in December 2007, when it rejected UN’s plea for a worldwide moratorium on capital punishment which was further.

Despite India’s stance on capital punishments, the judiciary saves it for extreme violations of law. In the past 10 years the Indian Judiciary has sentenced 1,303 people to death but only four have been hung till death in this entire decade.

Dhananjoy Chatterjee:

Date of execution: August 14, 2004 (Alipore Central Jail, Kolkata)

Dhananjoy Chaterjee was accused of raping and then murdering a 14 year old girl, Hetal Parekh. Dhananjoy was born in a village 200 kilometres from the main Kolkata city. He left his village to work as a security guard. The victim lived in the same apartment that Dhananjoy was guarding. According to the official verdict, it was proved that he raped the girl and then choked her to death. The judiciary declared the crime as “rarest of rare” because the guard was responsible for the protection of the society and the people living in it. The accused was scheduled to hang on June 25, 2004 but his family filed a mercy plea, which was rejected by the then President of India, A.P.J. Abdul Kalam. He was finally hanged on his 39th birthday in Alipore Central Jail in Kolkata.

Mohammad Ajmal Amir Kasab:

Date of execution: November 21, 2012 (Yerwada Jail, Pune)

Ajmal Kasab was a part of the group that was responsible for the infamous 26/11 attacks in Mumbai. This case was closely followed by the media of our country which was probably the reason why case was expedited. An 11,000 page charge sheet was filed against Kasab which made a strong case against him. He kept changing his statement from time to time and moved up to the Supreme Court pleading for mercy. President Pranab Mukherjee upheld the judgement of capital punishment on the November 5, 2012 and he was hanged to death on November 21, 2012.

Afzal Guru:

Date of execution: February 9, 2013 (Tihar Jail, Delhi)

Afzal Guru was accused of being the master mind behind the attacks on the parliament on December 13, 2001. Five armed terrorists attacked the Indian Parliament which led to the death of 8 security personnel and a gardener. A media person was also shot amidst the attack and succumbed to the injuries later. The case was handed to a special cell of Delhi Police, which was able to track and arrest Afzal by December 15, 2001. He pleaded guilty in front of the media but took back his statement later claiming that he did it due to the pressure induced by the police. A special court was formed under the Prevention of Terrorism Act which finally sentenced him to death on December 18, 2002. Due to various pleads and protests the case went on till February 6, 2013, when his plea was rejected by the President Pranab Mukherjee. His execution was a carried out as a secret mission on February 9, 2013.

Yakub Memon:

Date of execution: July 30, 2015 (Central Jail, Nagpur)

Yakub Memon was accused of taking part in sponsoring the 13 blasts that rocked Mumbai in 1993. A charted accountant by profession, it was claimed that he sponsored the bomb blasts that were masterminded by his brother Tiger Memon and underworld mafia Dawood Ibrahim. The blasts claimed the lives of 257 people. Yakub pleaded repeatedly before the apex court claiming that his case was not dealt with in the correct manner. Two subsequent mercy appeals were rejected which ended in an unprecedented all-night court hearing. The court rejected the final appeal at 5a.m. in the morning. Yakub was woken up at 4:00 a.m. and was allowed to take a warm water bath. He read the Quran and offered his Namaz before being hanged before 7am and was declared dead at 7:01 am.