"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Sunday, June 21, 2015

Executioner-in-Chief? India's SC's ever-changing dance with death under HL Dattu & other justices

Chief Justice of India (CJI) HL Dattu is not far from matching a new record: since he became CJI on 28 September 2014, he has confirmed the death sentences of 10 persons in 5 cases.

This year alone, Dattu presided over apex court benches that confirmed 8 death sentences in 4 cases confirmed 8 death sentences in 4 cases, including 2 persons whose appeal he refused in a judgment delivered last month (15 May), and 2 on the Friday before that (8 May).

In a Supreme Court tenure that started in 2008, Dattu has confirmed 13 death sentences in seven cases with nearly 7 months remaining before he retires, according to a tally of such judgments that is with Legally India.

If Dattu continued at the pace he's set in early 2015, he could be on track to approach the former Supreme Court judge Justice Arijit Pasayat's record tally of 23 death penalty confirmations in 13 cases between 2001 and 2009.

And although Dattu commuted one death sentence to life imprisonment because he found the prosecution's evidence too circumstantial to warrant the death penalty, in 2 cases he also dismissed 4 prisoners' special leave petitions (SLPs) to appeal their sentences to the Supreme Court outright with only a cursory hearing (in limine, in legal speak).

For lawyers, academics and activists opposing the state putting anyone to death even for the most heinous crimes in the rarest cases, things are looking far more bleak now than they did only 12 months ago.

Sathasivam's legacy

"I personally feel sullied every time a person is executed in my name," says advocate Dr Yug Mohit Chaudhry about why he is spending so much time fighting to save the lives of those sentenced to death. "It's almost certain that the person is being executed because of his poverty. You're criminalising poverty here because he couldn't defend himself adequately."

Chaudhry has handled hundreds of murder trials and appeals, and around 25 "end stage cases of death-row prisoners on the verge of execution", having written more mercy petitions than he can remember, he says.

He, along with senior advocates Colin Gonsalves, Ram Jethmalani, Anand Grover and R Basant argued for a raft of death row prisoners in a case that would prove to be a game-changer in death penalty jurisprudence, wedging open a door that no one was sure had even existed until that point.

On 21 January 2014, then Chief Justice of India (CJI) P Sathasivam, heading a constitution bench of three with justices Ranjan Gogoi and Shiva Kirti Singh, commuted the sentences of 15 death row inmates to life in prison because the state had taken too long to deal with their mercy petitions.

"They did not expect at the time that a challenge would be mounted on the basis of delay," comments Gonsalves.

The 154-page judgment stated that "when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect".

Small mercies

Mercy petitions come after the court appeals against the death sentence have run their course. "The prisoner's mercy petition is 1st sent to the (state) Governor, and if it is rejected, to the President (of India)," explains Chaudhry. "The Governor and the President have no independent powers in this area, and they have to act as per the advice of the state and central governments respectively. At best, they can return the recommendation by the government for reconsideration, or delay signing the rejection letter when they do not agree with the recommendation."

"From 1998 we had three consecutive presidents who were against the death penalty," he adds about K.R. Narayanan, Abdul Kalam and Pratibha Patil. "For 10 years there was only 1 rejection (of a mercy petition).

"Pratibha Patil (president from 2007 to 2012) held out. She refused to sign any rejections for the bulk of her tenure. Then, under immense pressure, she rejected 3 cases, involving 5 prisoners. While doing so, she also granted mercy in a large number of cases."

Since then, president Pranab Mukherjee has rejected around 31 mercy petitions, recounts Chaudhry. "Mukherjee has basically just become a rubber stamp. He's a government man, but he's supposed to exercise his judgment independently. He can ask questions and try to persuade the government, as his predecessors have done, but he seems to be quite content to sign on the dotted line even though it means that he's signing a human being's death warrant."

While apparently straightforward, the mercy petition process often becomes delayed by inefficiencies in bureaucracies, which leaves prisoners lingering on death row for years - 14 years in 1 case - and sometimes in solitary confinement (a form of torture according to many human rights advocates).

Anup Surendranath, director of NLU Delhi's death penalty project, says that under Sathasivam's doctrine if there is "undue" delay by the executive in rejecting a mercy petition - a time period that can vary from case to case - there is no need to prove that the prisoner has suffered because the court will "presume suffering".

The new principle of undue delay was re-applied quickly: on 18 February 2014 the same Sathasivam-headed bench commuted the death penalty of the 3 Rajiv Gandhi assassins; on 31 March 2014, Sathasivam with his 2 successor-CJIs RM Lodha and HL Dattu, alongside Justice Sudhansu Jyoti Mukhopadhaya, commuted the death sentence of Devender Pal Singh Bhullar.

"Unfortunately people began to feel very overconfident that the battle against the death penalty was substantially won," comments Gonsalves about the raft of commutations in Sathasivam's time. "It was real false bravado really - the central issue was untouched. It cured the problem in delay and disposal of petition but after that (judgment) no president is going to delay."

"Now the governments are aware that delay is a ground (for commutation)," agrees Surendranath and a consequence could be that "governments will just dispose of mercy petitions really quickly".

"It was something we had to decide - in trying to save the current bunch of people whose mercy petitions have been denied, we may have reduced the chances of future persons at the mercy petition stage," he says. "But that is not a reason to hold back such a litigation. In some of these cases the delay was horrendous. And in quite a few cases they continue to practice solitary confinement."

"It's a double edged-sword," adds Gonsalves. "A delay in disposal got you extra moments of life but the same thing that got you extra moments of life, that is the argument for commutation."

"It brought benefit to a limited number of persons whose delay applications are pending but it made it more difficult now for those whose mercy petitions were yet to be filed, because for them there would be no delay at all. The chance of political manoeuvring, the chance of something unexpected turning up, is gone because there is no delay," he laments.

Favourable odds?

The NLU Delhi Death Penalty Litigation Clinic (established in August 2014) and now with four full-time lawyers now handles legal representation for death row prisoners and is currently involved in the cases of over 35 prisoners sentenced to death. Apart from strategising, drafting, and briefing arguing counsel, the Clinic ensures detailed interviews with prisoners and regular prison visits to update prisoners about the progress in their cases.

According to statistics from the centre, around 385 prisoners are currently sentenced to death in India and awaiting either their death or a successful appeal. However, only three have actually been executed in the last 15 years: Dhananjoy Chatterjee in 2004, Ajmal Kasab in 2012 and Afzal Guru in 2013.

"Of 100 cases where the death sentence is given in trial court, about 5 or 6 get confirmed by the Supreme Court," explains Surendranath. "Lots of people say that (this is evidence that) the system is working: 94 people are not affirmed by the appellate courts. But given the delay in our system and the manner in which prisons treat prisoners sentenced to death, we are unnecessarily keeping 94 people on death row for long durations."

The funnel coming from trial courts remains huge and continues to be fed by inadequate legal representation for the poorest of defendants.

"With a few honourable exceptions, the legal aid panels are staffed by briefless barristers, people who are not good enough to have a private practice," says Chaudhry. "Further, the extremely low remuneration (legal aid typically provides Rs 500 - 1500 for an entire trial, Rs 2,000 or so for an appeal in the high court) and the volumes of papers to read, are actually a disincentive to put in any hard work or research.

"Court clerks earn more for each case handled by a chamber."

On top of that trial court judges are not immune to the rhetoric coming from the apex and high courts, nor necessarily insulated from a media frenzy and public opinion.


"There's sort of a fight back by 'hanging judges' who may feel that the Sathasivam period brought unncessary relief to those who they believe did not deserve it," argues Gonsalves about what he calls a "wrong" and "very narrow view". "The Supreme Court has swung so far into the realm of conservatism and regression that we've gone backwards many many years, if not decades.

"Now you have a series of death sentences being delivered by the Supreme Court with not even an elementary understanding of the 'rarest of the rare'."

The oft-cited 'rarest of rare' criterion was crystallised in a majority judgment by a 5-judge Supreme Court constitution bench in the Bachan Singh vs State Of Punjab case in 1980 (Justice PN Bhagwati, solely dissenting with the 4 other judges, held that the death penalty was unconstitutional because there weren't enough legislative guidelines and should therefore be struck down).

The 4 judges who wrote the majority judgment in the case did not go as far but stated that "judges should never be bloodthirsty".

"A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed," they wrote.

The bench also noted that "great weight" should be given to mitigating circumstances, even in the most heinous murder cases that would quality for the death penalty. However, complain Chaudhry and Gonsalves, a large number of courts are nowadays ignorant of such guidelines under which the "state shall by evidence prove that the accused" would constitute a "continuing threat to society" and can not be "reformed and rehabilitated".

For defence lawyers, the oft-cited 'rarest of rare' test has therefore become a codeword for judicial unpredictability.

Chaudhry says, "The fate of death sentence cases, especially in appeal, depends overwhelmingly on the subjective beliefs and perspective of the judges deciding the case. They decide whether in their opinion a particular case falls into the nebulous category of rarest of rare, and whether it deserves the death sentence, and there are no objective parameters. Consequently, inconsistency and arbitrariness are rife in our death penalty jurisprudence."

Despite anti-death penalty lawyers feeling that they are faced with a hostile CJI and government, small victories and legal strategies continue being carved out against the odds.

The Supreme Court has decided 240 death penalty cases since 2000, according to data compiled by Chaudhry. Out of those, 119 death sentences were commuted to life in prison and in 70 the accused were completely acquitted.

In only 51 was the death sentence upheld by the Supreme Court.

After a death sentence is upheld, and before the mercy petition stage, lawyers will usually try to file a review petition where the same Supreme Court judge who confirmed the death sentence would sit in chambers in solitude to re-consider if any obvious error had been made.

Unsurprisingly, unless the judge had retired and a new judge would do the review, judges almost never admit in review that their recent judgment was incorrect and should be re-opened. But in a life-and-death matter, argued lawyers, such a cursory review process is not sufficient.

On 2 September 2014, after hearing writ petitions brought by 5 death row convicts, a 5-judge constitution bench changed the rules, handing down a majority verdict written by Justice Rohinton Nariman, saying that review petitions challenging death penalties must be heard by a 3-judge bench in open court.

Furthermore, they ruled that all those on death row whose review petitions had been heard by less than 3 judges, would be entitled to apply for new review petitions by a three-judge bench within a month. Justice Chelameswar dissented and disagreed with the 4-judge majority and warned that it could spawn an "unwarranted 'review baby' boom" of death penalty decisions.

That said, the chances of a successful review petition are usually slim, admit Gonsalves and Chaudhry.

However, in an alignment of circumstances that is typical in the unpredictable world of death penalty jurisprudence, that judgment ended up saving at least one life as it eventually met the Sathasivam delay doctrine in a round-about and dramatic way.

At 130am on 12 September, senior counsel Indira Jaising secured a one-week stay of the execution for the Nithari killings convict Surinder Koli, after waking up CJI Dattu at his home in the middle of the night, only hours before Koli faced the noose.

And while the Supreme Court would later dismiss Koli's review, on 29 January 2015 a challenge was successful before Allahabad high court chief justice DY Chandrachud, who held that the State of Uttar Pradesh had applied the wrong rules when rejecting Koli's mercy petition.

Chandrachud then commuted Koli's death penalty to life in jail due to an "unnecessary and unreasonable" 3 1/2 year delay in having dealt with the mercy petition, again relying on the Sathasivam doctrine.

And, as it goes in the law, less than four months later on 27 May 2015, a 2-judge vacation bench of Supreme Court justices AK Sikri and UU Lalit relied on Chandrachud's judgment to squash Dattu's 12th and 13th death sentence confirmations that the CJI had handed down only 2 weeks earlier, on 15 May.

The irony is that this time the system had moved too quickly rather than causing undue delay: justices Sikri and Lalit held that a sessions judge had violated fair procedure by signing the death warrants "in haste", by waiting only 6 days after Dattu's confirmation of the sentences.

The fight to the death in the courts is certain to continue.

Source: legallyindia.com, Kian Ganz, June 19, 2015

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