"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, July 12, 2015

Abolition of death penalty in India evokes mixed reactions

New Delhi: A discussion on a law commission consultation paper on whether capital punishment should be retained or abolished evoked a mixed response on Saturday. 

While former President APJ Abdul Kalam, DMK leader Kanimozhi and former West Bengal governor Gopalkrishna Gandhi supported the abolition of death penalty, several others, including SC bar association’s Dushyant Dave favoured retaining the capital punishment. 

The law commission on Saturday organised a day-long consultation on the issue of abolition of death penalty in India, which was part of its over year-long process to garner views and suggestion before submitting its report to the Supreme Court.

Several of those who responded to the consultation paper, brought out by law commission last year, and experts who participated in today’s consultation sought a more unambiguous definition of ‘rarest of rare’ case where death penalty can be handed down by the courts. 

In his inaugural address, Gopalkrishna Gandhi while opposing death penalty said ending life of a person was a “perk” available to a State. He said the State should investigate crime and not use “shortcuts” like execution for “gratification”. “A man hanged cannot look back and say, oh I have been hanged,” he said, supporting abolition of death penalty. 

Justice (retd) Bilal Nazki said the principle of ‘rarest of the rare’ case was being applied arbitrarily in certain cases because people, including judges, carry “baggage”. 

He lamented that those being elevated to higher courts do not get education to deal with sensitive subjects. 

Justice Nazki also blamed “media interference” which weighs on the minds of the judges.

Source: Mid-Day, Agencies, July 12, 2015

Law panel consultation tomorrow

The Law Commission of India will hold a 1-day consultation with stakeholders on the issue of the death penalty on Saturday. The advisory body's consultation aims to debate and discuss various aspects of the death penalty.

The meeting, to be inaugurated by Gopalkrishna Gandhi, will bring together a select group of leading figures in the judiciary, the bar, academia, media, and political and public life for the consultation.

In May 2014, the commission had invited public comments on the subject by issuing a consultation paper.

The 1-day consultation is being held further to the comments received in response to that paper, and the views set forth during the consultation will aid the commission in formulating its report on the issue.

The agenda for discussion at the consultation will be aimed at finding answers to questions like: Is the death penalty applied arbitrarily? How can this be avoided or removed? Does the death penalty discriminate against marginalised and vulnerable people?

It will also aim to discuss the state of the criminal justice system in the country, including the challenges faced by the criminal justice system, including the police, investigation processes, the judiciary and jail systems, and how the system can be improved to allow for fair, impartial, and error-free application of the death penalty.

The consultation process will also try to dwell upon the penological purposes of the death penalty. What purpose does the death penalty serve? What alternatives can replace the death penalty to serve the same purpose?

The larger question of should the death penalty be retained in its present or modified form in view of India's constitutional and international legal commitments will also be discussed.

It may be noted that the Supreme Court in Santosh Kumar Satishbhushan Bariyar v. Maharashtra and Shankar Kisanrao Khade v. Maharashtra, had suggested that the Law Commission should study the death penalty in India to "allow for an up-to-date and informed discussion and debate on the subject".

The present law of the death penalty was laid down in Bachan Singh v. UOI (1980), when the Supreme Court upheld the constitutionality of the penalty. However, the court confined its application to the rarest of rare cases, to reduce the arbitrariness of the penalty.

In 1980, when Bachan Singh was decided, only 18 countries had abolished the death penalty for all offences. Since then, about 2/3 of the world has abolished the death penalty in law or in practice. So far 98 countries have abolished the death penalty for all offences, 7 have abolished the death penalty for ordinary crimes and 35 others have imposed an effective moratorium against the death penalty.

Source: Asian Age, July 10, 2015

Death Penalty in present or modified form to be discussed in LCI meeting

The critical issue of whether the death penalty should be retained in its present or modified form in view of Indias constitutional and international legal commitments will be thoroughly discussed during a one-day consultation being organised by the Law Commission of India (LCI) on July 11.

Inaugurated by Shri Gopal Krishna Gandhi, the consultation will explore the key themes of: Arbitrariness and discrimination: Is the death penalty applied arbitrarily? How can this be avoided and whether the death penalty discriminates against marginalised and vulnerable people.

A select group of leading figures in the judiciary, the bar, academia, media, and political and public life will debate various aspects of the death penalty.

Stakeholders from all walks of society including distinguished judges, retired judges Prabha Sridevan, SB Sinha, Hosbet Suresh, K Chandru and Rajinder Sachar will attend.

The present law of the death penalty was laid down in Bachan Singh v. UOI (1980), when the Supreme Court upheld the constitutionality of the penalty. However, the SC confined its application to the rarest of rare cases, to reduce the arbitrariness of the penalty. In arriving at its decision in that case, the apex court had relied on the 35th Report of the Law Commission among others, which the judiciary now feels needs to be re-visited, especially since it was submitted in 1967, and thus did not account for the over-hauling of the death penalty framework in the Code of Criminal Procedure, 1973, as well as changes in Indias socio-political and legal landscape.

The legal landscape has also transformed in the 35 years since Bachan Singh. In 1980, when Bachan Singh case was decided, only 18 countries had abolished the death penalty for all offences. Since then, about two-thirds of the world has abolished the death penalty in law or in practice. 98 countries have abolished the death penalty for all offences, 7 have abolished the death penalty for ordinary crimes, and 35 others have imposed an effective moratorium against the death penalty.

In international criminal law, the death penalty has been abolished for even the most grave and heinous offences, such as genocide, crimes against humanity and war crimes. Acccording to the organisers, these changes in India and elsewhere make it an opportune moment to revisit questions of the constitutionality and desirability of the death penalty.

Sourve: webindia123.com, July 10, 2015

The Death Penalty Litigation Clinic fights for the death-row convict's fundamental right to life

Close to noon on May 20 this year, Lubhyathi Rangarajan and Nishant Gokhale, associates and lawyers at the Death Penalty Litigation Clinic (DPLC), waited in Agra Central Jail for a meeting with Saleem. 5 days earlier, the Supreme Court had confirmed the death sentences of Saleem and Shabnam, convicted for killing 7 members of Shabnam's family, including a 10-month-old infant, in 2008.

Rangarajan and Gokhale spoke with Saleem for nearly 2 hours and conveyed the Delhi-based clinic's desire to help him. The duo went through the case records with Saleem, took him through the evidence and testimony, and he in turn gave his inputs and insights. "Strangely, no one had asked him these details earlier," says Gokhale. The trial court proceedings were still fresh in Saleem's mind. As the case went through High Court and Supreme Court, he had often banked on newspaper reports to know the progress.

The morning after their meeting at the Agra jail, Rangarajan, Gokhale and Saleem learnt - again from newspapers - about the death warrants issued for Shabnam and Saleem by the Sessions Judge of Amroha. "He had absolutely no idea and it was a coincidence that we were there the day before. We were shocked and taken aback by the hastiness," says Rangarajan. The warrant had come 6 days after the confirmation of death sentence, bypassing the mandatory 30-day period available to convicts to explore all legal options. Silent on the date and time, the warrant merely instructed a swift execution, says Rangarajan. "Usually, there is a hearing where the accused is produced and given a lawyer. None of this had happened," she adds.

Gokhale and she immediately filed a Public Interest Litigation in the Supreme Court. The case was listed 2 days later, and the court quashed the warrants, citing the death-row convict's fundamental right to life. A review petition has now been filed in Saleem's case in the Supreme Court.

For the barely year-old DPLC, getting the warrant quashed was a small but significant milestone. Part of Delhi's National Law University (NLU), the clinic aims to provide 'competent and effective legal representation' free of cost to indigent prisoners on death row, and is a one-of-its-kind resource linked to a university in India. For a team that tracks death sentence cases countrywide, it is a small one. Apart from Rangarajan and Gokhale, it has Shreya Rastogi and Maitreyi Misra; Anup Surendranath, an assistant professor at NLU, is the director. Through advocates on record, the clinic currently represents around 35 death-row prisoners, mainly in the Supreme Court.

Story behind the sentence

The clinic did not figure initially in their plan, which had been about research, largely carried out by university students, on the lack of empirical data on death penalty in India. While mainstream narratives often focus on death sentences when there are Supreme Court decisions or executions, the researchers and students looked for the stories behind the sentences - the profile of prisoners, their experiences with the police, the evidence the courts relied on for the sentencing and so forth. They recreated the legal processes that preceded the conviction. Rather than debate death penalty in the abstract, the group wanted to analyse it from within the criminal justice system. Yes/No, For/Against were no longer the questions; instead it was 'How.' "Unless you go into the details of the criminal justice system and what it has used to bring upon the death penalty, you cannot do the debate," says Surendranath.

First, they needed data - accurate and up-to-date. Information on the exact number on death row was often unavailable. In 2013, the university collaborated with the National Legal Services Authority and researchers visited central jails around the country that housed death-row prisoners. They interviewed prisoners in Jorhat and Jammu, Tihar and Nagpur. Of the 385 prisoners on death row till June 2014, the researchers included 373 in their study. "Some states were easier than others. Some were particularly difficult, like Maharashtra, where it took us 9 months just to get the permission to interview. They did not allow us to interview prisoners sentenced to death for terrorist attacks," says Surendranath.

In the process they realised if there was an outsider in this system it was the prisoner. "One thing that stood out was how all of this could have been carried out without the prisoner ... all of it is based on documentation, the police produce documents and the defence lawyers rely on these documents. Nobody had ever spoken to the prisoner. We were the 1st to talk to them and get their version," he says.

The prisoner profile was often all-too-similar - socially and economically backward; deprived of sound legal assistance in the lengthy and complicated processes involved. To complete their narratives, the researchers went looking for the families and met with mixed results. They came across hostile families that had snapped all ties, moved villages and wanted nothing to do with the prisoner. On the other hand, they also met resilient and supportive ones, eager to talk and help despite their poverty.

Given an opportunity to talk, the crime was often what the convicts talked about - of being trapped, about why they did it or why their reasons never came out in court. Surendranath says, the hope they gave the prisoners after a series of interviews was overwhelming. "Dealing with their expectations was tough. We were doing interview after interview. We were using them and not offering anything in return," he says.

The university was clear this was an academic project, not an intervention. Despite being constantly reminded that the interviews did not mean legal assistance, it did not stop the prisoners from hoping. "They thought we had access to things that they did not. They thought we were a medium to get their stories out," adds Surendranath.

As researchers uncovered gaping holes in the legal processes, the project evolved to include intervention. "In the end, it was merely the way these cases were carried out. A basic level of legal representation would have averted the death penalty," he says.

During the research, one query they refrained from asking prisoners was - 'Did you do it?' At that point, they say, it was irrelevant. The back story of crime was often gruesome; sordid details frequently played out in the media. "You learn to slowly not obsess with 'Did they or did they not do it' and it's the most difficult thing to do. We learn and teach at the law school that even if a person has committed the most horrific crime, there is a process by which they have to be sentenced ... You may not be able to tune yourself completely out of it, but that is the challenge," he adds.

It is a challenge the DPLC members face not only when they meet prisoners. Their work is at times not endorsed by others, including family and friends. For instance, when the India's Daughter controversy raged, the team was at the receiving end of taunts. 'Now, you would want to defend them too. Look what they think', was a refrain they heard often.

Rastogi knows she is working in an area that polarises opinion. A layperson may not be willing to comprehend or acknowledge the fundamental rights of a prisoner convicted of multiple murders or respect the legal processes he/she is entitled to. Rastogi, who quit her corporate job for the clinic, says what often works is the general prisoner profile. "Like, why persons of a certain economic and social background often end up getting these punishments." Constant interactions with the prisoners have shown her that despite their lives hanging in limbo for years, most of them have tried to move beyond the crime, however tough that may be. "There are so many prisoners we meet who tell us 'Yes, I did that'. But they tell the story around it. They do not want to be locked in that period of time," she adds.

Beyond the crime

Saleem, for instance, was a school dropout at the time of arrest. The DPLC members say he now has a diploma in agricultural science and human rights and is doing his final year bachelor's degree. "He corresponds with us. And all these prisoners, whenever they write, are profusely apologetic for taking our time. On the other hand, it is their time that is precious," says Rastogi.

Misra believes the change in narrative should begin by giving the prisoner his/her identity. "We do not even see them as a person. He/she is defined by their crime," she says. Mainstream narratives should move towards ensuring that the state and courts fulfil their responsibilities in this process, she adds.

Though the clinic currently deals with cases that are at an advanced stage, where time is rapidly running out for the prisoner, Surendranath says that ideally any intervention should take place at the base, where foolproof legal representation will negate the possibility of a death sentence.

The clinic is handling cases where the members know they might exhaust legal options soon. Once the President rejects a mercy petition, they explore possibilities like a writ petition, a 2nd mercy petition or a review petition, if it has not been filed. "The game is never really over. But in some cases we pretty much have the last option," says Surendranath. He adds, "Taking life must be difficult; it has to be made as difficult as possible. A. You be goddamn sure. B. The person should be given all opportunity to represent their case."

Source: The hindubusinessline.com, July 10, 2015

Courts awarded 2,052 persons with death penalty in 15yrs: Report

The debate over capital punishment may be still going on, but the courts in India awarded death penalty to 2,052 individuals between 1998 and 2013, a report released on Thursday said.

The Commonwealth Human Rights Initiative said it meant 186 individuals were sent to gallows every year during the period. In the first 13 years of this century, the number was 1,0677.

"The maximum number of death sentences was in 2007 when courts across India punished 186 individuals. In 2000, 165 individuals received death sentences while 164 individuals received the punishment in 2005. The least was 55 in 1998," the report, released in the wake of a consultation by the Law Commission on death penalty, said. The commission's consultation paper said there was no spurt in crime between 2000 and 2013 when no person who received death penalty was hanged. The consultation is being held on directions of the Supreme Court which wanted an informed debate on this issue.

1/4 of the death penalties awarded were in Uttar Pradesh, followed by Bihar (178) and Madhya Pradesh (162).

In 2013, Madhya Pradesh topped the list with 22 death sentences. Maharashtra took the 4th place followed by Tamil Nadu. Interestingly, in Karnataka, no death sentences were handed down between 1998 and 2013, the report said.

The report, based on National Crime Records Bureau data, said, "In Jammu and Kashmir and Manipur where the Armed Forces Special Powers Acts (AFSPA) is in force, the number of death sentences is lower," the report said.

The period also saw death sentences of 4,497 persons commuted to life imprisonment by the courts.

Source: Hindustan Times, July 10, 2015

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