Capital punishment: India
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Capital punishment: incidence of
Actual hangings are rare: Nithari, Rajiv Gandhi cases
Actual hangings in India are rare as the Nithari and Rajiv Gandhi cases show
Joshi-Abhyankar killings of ’70s Pune
4 Convicts Were Last Hanged In A Day In 1983: Report, Press Trust of India, January 8, 2020: NDTV
In 1983, four convicts in the sensational "Joshi-Abhyankar" killings in Pune were executed together at the Yerwada Central Jail.
With four convicts in the Nirbhaya gang rape and murder case set to face the gallows on January 22, this won't be the first time that four convicts on death row will be hanged in a day.
In 1983, four convicts in the sensational "Joshi-Abhyankar" killings in Pune were executed together at the Yerwada Central Jail.
Rajendra Jakkal, Dilip Sutar, Shantaram Kanhoji Jagtap and Munawar Harun Shah were hanged on October 25, 1983.
The Joshi-Abhyankar serial killings were 10 murders committed by them between January 1976 and March 1977.
Suhas Chandak, an accused in the case, had turned an approver.
The murderers were commercial art students at the Abhinav Kala Mahavidyalaya on Pune's Tilak Road. They were notorious for drinking and robbing two-wheelers.
The first murder took place on January 16, 1976.
The victim, Prasad Hedge, was a classmate of the murderers. His father ran a small restaurant behind their college. They sent the note to his father the next day.
Between October 31, 1976 and March 23, 1977 they killed nine more people. They used to break into homes, threaten residents and make them direct the group towards the valuables. They would then murder the family members by stuffing cotton in their mouths and then strangling them with a nylon rope.
The gruesome killings had sent shock waves across Maharashtra.
Sharad Avasthi, who retired as assistant commissioner of police, was present in the court when the death sentence was pronounced.
"I remember that when the accused were sentenced to death, there was a large crowd in the court premises. The four convicts, while being taken out of the court complex after the sentenced was pronounced, were actually waving at the crowd as if they were heroes," he recalled.
Avasthi, who was then a police inspector, said special teams were formed to nab the killers.
"Police officers who had worked in Pune earlier were summoned to investigate the case," he said.
Pune-based social activist Balasaheb Runwal, who was at that time in his teens, said the killings created so much fear among people that they had stopped venturing out of their houses after 6 pm.
"I remember people used to be in a state of shock, but reports related to the killings appearing in newspapers and of the court trials were widely read," he said.
Commuting death sentence to life imprisonment
Where the age of victims was below 16 years
Nov 9, 2021: The Times of India
Low age of victims in rape-and-murder cases not sufficient for imposing death penalty: SC
NEW DELHI: Low age of victims in rape-and-murder cases has not been considered as the "only or sufficient factor by this court" for imposing the death penalty, the Supreme Court has said referring to its verdict that had analysed 67 similar cases dealt by it in the last 40 years.
The apex court's crucial observation came on an appeal of Irappa Siddappa who was convicted and given death penalty by a trial court. The Karnataka high court confirmed the trial court's decision on March 6, 2017.
He was convicted for kidnapping, rape and murder of a five-year old-girl in the village of Khanapur in Karnataka in 2010 and post the incident, he had put the body of the victim in a bag and thrown it into a stream, named Bennihalla.
A bench comprising Justices L Nageswara Rao, Sanjiv Khanna and BR Gavai confirmed the conviction of Siddappa for offences including rape, murder and destruction of evidence, but set aside the award of death penalty, which was handed down by courts below on grounds including the minor age of the victim, and commuted it to life imprisonment for a period of 30 years.
"We find sufficient mitigating factors to commute the sentence of death imposed by the Sessions Court and confirmed by the High Court into imprisonment for life, with the direction that the appellant shall not be entitled to premature release/remission for the offence under Section 302 (murder) of the Code until he has undergone actual imprisonment for at least thirty years,” said the verdict penned by Justice Khanna for the bench.
It also directed that the sentences shall run concurrently and not consecutively.
The top court extensively dealt with arguments based on minor age of the victims in rape-and-murder cases and referred to the apex court's judgment in the Shatrughna Baban Meshram case in which 67 judgments of the Supreme Court in the previous 40 years were surveyed.
In these judgments, death sentence had been imposed by the trial court or the high court for the alleged offences under Sections 376 (rape) and 302 (murder) of the IPC, and where the age of victims was below 16 years, the apex court said.
"Out of these 67 cases, this Court affirmed the award of death sentence to the accused in 15 cases. In three, ... out of said 15 cases, the death sentence was commuted to life sentence by this Court in review petitions.
“Out of the remaining 12 cases, in two cases..., the death sentence was confirmed by this Court and the review petitions were dismissed. Thus, as on date, the death sentence stands confirmed in 12 out of 67 cases where the principal offences allegedly committed were under Sections 376 and 302 IPC and where the victims were aged about 16 years or below,” it said.
Out of these 67 cases, at least in 51, the victims were aged below 12 years, it said, adding that in three cases, the death penalty was commuted to life sentence in review.
“It appears from the above data that the low age of the victim has not been considered as the only or sufficient factor by this Court for imposing a death sentence. If it were the case, then all, or almost all, 67 cases would have culminated in imposition of sentence of death on the accused,” the top court said.
It referred to various verdicts and said that though such an offence was heinous and required condemnation, it was not “rarest of the rare, so as to require the elimination of the appellant from the society.”
The state government has not shown anything to prove the likelihood that the convict would commit acts of violence as a continuing threat to society, and his conduct in the prison has been described as satisfactory, it said.
"There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat. We believe that there is hope for reformation, rehabilitation, and thus the option of imprisonment for life is certainly not foreclosed and therefore acceptable,” the bench said.
AmitAnand Choudhary, Nov 10, 2021: The Times of India
‘Hope for reformation’: SC ‘reprieve’ for rapist-killer
Death Commuted To 30-Yr Jail Term Sans Remission
A man, convicted for raping a five-year old girl and then killing her by strangulation in Gadag district in Karnataka, escaped the gallows with the Supreme Court commuting his death sentence to life imprisonment with a condition that he will spend at least 30 years in jail without remission.
A bench of Justices L Nageswara Rao, Sanjiv Khanna and BR Gavai commuted the death sentence, which was awarded by a trial court and upheld by the high court, after considering his young age at the time of committing the offence, his weak socio-economic background, absence of any criminal antecedents and his satisfactory behaviour in jail in the last ten years, as mitigating factors.
Granting his relief, the Supreme Court said that the high court was wrong in saying that there were no mitigating circumstances at all. “To begin with, it is clear that the appellant had no criminal antecedents, nor was any evidence presented to prove that the commission of the offence was preplanned. As submitted by the counsel for the appellant, there is no material shown by the state to indicate that the appellant cannot be reformed and is a continuing threat to the society,” it said.
Referring to the Supreme Court verdict in Shatrughna Baban Meshram case in which 67 judgments of the apex court in the previous 40 years were surveyed wherein death sentence had been imposed by the trial court or the high court and where the age of victims was below 16 years, the bench said, “It appears from the above data that low age of the victim has not been considered as the only or sufficient factor by this court for imposing a death sentence. If it were the case, then all, or almost all, 67 cases would have culminated in imposition of the sentence of death on the accused.”
Some famous cases
Shobita Dhar, Piyush Rai & Sandeep Rai, January 14, 2020: The Times of India
Some sing, some eat a hearty meal and sleep soundly and some go kicking and screaming protesting innocence: Sunil Gupta, retired legal officer at Delhi’s Tihar Jail, has seen the many moods of many a man walking to the gallows. And the grim parade in his 35-year career began one restless night in 1982 when he couldn’t swallow his dinner.
The next morning, January 31, Gupta was to preside over his first hanging — of Billa and Ranga — who were given the death penalty for kidnapping, raping and murdering two teenage siblings in 1978. The case has grisly similarities with the Nirbhaya case in which four men are sentenced to hang later this month: the siblings were given a lift by the two criminals in their car; the 14-year-old brother was struck with a kirpan while his sister was raped and then stabbed.
“Until then, I had only read about Billa and Ranga in newspapers. When I first saw them, it was something else,” says Gupta who recounts the night in his book, Black Warrant, which he co-wrote with journalist Sunetra Choudhury. Prisoners are told a week ahead of their hanging so they may speak to family and friends and settle their will. “The jail superintendent has to convey this information,” says Gupta. “While Ranga was a happy-go-lucky fellow who would always say ‘Ranga khush (happy)’, Billa was always weeping and blamed Ranga for the crime and the death sentence.” The prisoner is moved to the death cell — jail number 3 — and put on suicide watch. All belongings are taken away, even the pyjama string as it can be used to strangle oneself. Then, sheer mechanics take over. The prisoner is weighed, his height and length of the neck measured to prepare the equipment for the execution. “The heavier the prisoner, the shorter the fall. It’s very important to follow the procedure because otherwise there’s a risk of decapitation,” says Gupta. The hanging is then simulated with sandbags 1.5 times the convict’s weight just to make sure the noose is strong enough. In his book, Gupta says wax or butter is applied to ensure the rope doesn’t cut; some hangmen like Bengal’s Nata Mullick preferred soap and mashed bananas instead. “The night before their hanging, Ranga ate his meal and slept well but Billa kept pacing his cell, muttering. When they were hanged, Billa was sobbing but Ranga went shouting Jo Bole So Nihal, Sat Sri Akal ,” remembers Gupta.
While the SP usually nods at the hangman to pull the lever, to hang Billa and Ranga, he chose to signal with a dramatic wave of a red handkerchief. The ‘Billa-Ranga’ hanky remained a souvenir he would show friends and relatives.
The hanging had a hair-raising moment too. When the jail doctor went to check on Ranga two hours after the hanging as per rules, his pulse was still going steady. “Sometimes, the prisoner stops breathing due to fear and the air stays trapped in the body. This is what must have happened in his case,” says Gupta, recalling that a guard was then asked to jump into the 15-feet-deep well over which Ranga was hanging and pull his leg. “That released the trapped air and the pulse stopped.”
Having witnessed eight hangings in his career, Gupta has come to be realistic about a job that must be done. He often breaks into a hearty guffaw as he narrates his interactions with the death row convicts — hardened criminals shorn of their reputations, only men keenly aware of the end.
The night before their hanging, Ranga ate his meal and slept well but Billa kept pacing his cell, muttering. When they were hanged, Billa was sobbing but Ranga went shouting Jo Bole So Nihal, Sat Sri Akal Sunil Gupta, Retd legal officer at Delhi's Tihar jail
Gupta remembers that Maqbool Bhat, founder of Jammu Kashmir Liberation Front who was hanged in 1984, helped him improve his English. Bhat served his death sentence in Tihar for the murder of a government official. “He was an educated and pious man and spoke fluent English. The jail staff often got him to file replies to official memos,” says Gupta.
Bhat’s black warrant came suddenly, after the kidnapping and murder of Indian diplomat Ravindra Mhatre in UK by a separatist group that had demanded Bhat’s release. “On the day of his hanging, Bhat was calm and composed.” He (Maqbool Bhat) was an educated and pious man and spoke fluent English. The jail staff often got him to file replies to official memos Sunil Gupta, Retd legal officer at Delhi's Tihar Jail
Contrary to the cliché in films, there is no last wish ritual, says Gupta. “What will prisoners ask for? They say don’t hang us or give us a non-vegetarian meal. Neither can be granted. Tihar is a vegetarian prison,” he says.
The last hanging that Gupta witnessed impacted him the most. The hardened officer admits he became quite emotional about Mohammad Afzal Guru, who was given the death sentence for his role in the Parliament attack of 2001.
Before going to the phansi kothi, the SP, Afzal and I sat down to have tea on the morning of Feb 9, 2013. He discussed his case and said he was not a terrorist, just an ordinary man fighting the system. Then he sang a song from an old Bollywood film, Badal: Apne liye jiye toh kya jiye, tu ji ae dil zamane ke liye Sunil Gupta, Retd legal officer at Delhi’s Tihar Jail
“Before going to the phansi kothi (jail number 3, ward 8), the SP, Afzal and I sat down to have tea on the morning of February 9, 2013. He discussed his case and said he was not a terrorist, just an ordinary man fighting the system. Then he sang a song from an old Bollywood film, Badal: Apne liye jiye toh kya jiye, tu ji ae dil zamane ke liye ,” recalls Gupta. In his book, Gupta says there was something so moving in the way Afzal sang that Gupta joined him. It’s a song Gupta says he has heard more than 100 times since.
- Length of the rope = Length of the drop + the distance from the angle of the prisoner’s jaw to the ring
- The noose is made from Manila rope manufactured in Bihar's Buxar jail. The jail is located next to the Ganga river and has a humid climate, which ensures the rope fibres are strong yet soft. If fibres are rough, they can decapitate the convict
- Hangmen prepare the rope by rubbing it with wax or butter. Some even use mashed bananas
- Two spare ropes per convict are kept in reserve, ready on the scaffold, in case of a mishap while carrying out the execution
All hangings are to be carried out early in the morning before it gets too bright, with the convict's hands tied behind his back. No execution can take place on a public holiday
A Piece Of Gallows For Curing Exam Fear
Sunil Gupta says a lot of people believe that keeping a piece of wood taken from the wooden planks can remove fear from a child. "We used to get a lot of requests for this wood," he recalls.
Shunned By Society
He was the hangman of the King of Travancore in 1940s. Shashi Warrier wrote a fictional account of Pillai’s life in a book titled ‘The Last Hangman’. It shows Pillai as a serious and withdrawn man who faced social ostracisation because of his work.
Old Monk For Hangman, Convict
Most well-known execution: Dhananjay Chatterjee, who raped and murdered a teen
Mullick was said to drink heavily before executions so that he wouldn’t flinch while pulling the lever. As Bengal’s state executioner, he got Rs 150 and a bottle of Old Monk every time he left a prisoner hanging on the gallows. In his book, Black Warrant, Sunil Gupta writes that Mullick would pour some of that rum onto the hanging plank after pulling the lever as an offering to the escaping soul of the prisoner. He died in 2009
Kalu & Fakira
Most well-known executions: Indira Gandhi’s assassins
The two worked as a pair. If one developed cold feet, the other was there to do the deed, writes Gupta. Kalu worked in Meerut jail while Fakira at Faridkot jail
Kalu trained his son, Mammu, who would send flyers — ‘Expert hangman. Rent his services’ — to Tihar and other jails to get work. But Mammu was never hired at Tihar because he was not a government employee, Gupta notes in his book. Mammu went on to be the hangman at Meerut jail. But his desire to execute Kasab remained unfulfilled. Now, son Pawan Kumar, carries the family legacy forward
One Of India’s Last Jallads On A Dying Biz
Soon after the death of UP’s official hangman, Pawan Kumar decided to step into his father Mammu Singh’s shoes. In 2013, the UP Directorate of Prisons took him on a retainership but six years later, the fourth generation ‘jallad’ is still waiting with the noose.
There was one near-call — in 2014, he was scheduled to hang the notorious Surinder Koli but the prisoner got a judicial reprieve. “For seven days, I strenuously prepared for the execution. But he got away,” says Kumar, sounding almost disappointed.
Now, with Tihar jail asking the UP prison department for hangmen to execute the four Nirbhaya convicts, the 57-year-old has his hopes up. Though he’s currently enjoying the attention of TV crews buzzing around him for bytes, it’s not the momentary fame or the paltry stipend of Rs 3,000 a month that attracts him. His motivation, he says, stems from his sense that justice needs to be done. “I kill people who have committed the most heinous of crimes. In fact, I am cleansing the world of its evil. So, I respect my profession,” he told TOI last month.
He also feels he will get a chance to redeem his family’s honour. Kumar’s great grandfather Laxman Ram served the British Raj and hanged several freedom fighters — a fact that bothered his grandfather Kallu Jallad and father Mammu Jallad — who were also hangmen. Kumar, too, doesn’t like to talk about his great grandfather.
“My father Mammu Singh wanted to hang 26/11 attack convict Ajmal Kasab and Parliament attack convict Afzal Guru to wash away the blot of freedom fighters’ blood on our family’s reputation,” Kumar said. Singh, however, passed away in May 2011, a year before Kasab was sent to the gallows.
Though other executions have happened – Afzal Guru in 2013 and Yakub Memon in 2015 – they have been handled by prison constables whose identities have been kept anonymous.
One reason for this is that almost no state now has a hangman. In fact, the only other professional hangman is an ageing Ahmadullah, who lives in Lucknow and is currently unwell. Though the only qualifications are that one has to be an adult male with a minimum height of five feet four inches, there are very few — quite understandably — who have the stomach for it.
Kumar, who lives with his family in a one-bedroom house at Kanshi Ram Awas Yojana in Lohia Nagar and sells clothes from a pushcart for a living, Meerut, says his children are unlikely to take up his profession. “My father Mammu was the state hangman for 47 years till he died on May 19, 2011, but the government has offered little in lieu of the services provided by our family. We get a stipend but no government job and no security. This legacy will probably die with me,” he says.
Analysis of capital punishment cases
Feb 3, 2020: The Times of India
NEW DELHI: Even as the hanging of convicts in the Nirbhaya gang rape and murder case is put on hold, TOI takes a look at how the courts dealt with death sentences in 2019. 102 death sentences in 2019, Rajasthan handed out the most Over the years, death sentences handed out by the courts have declined. Last year, sessions courts across the country handed out a total of 102 death sentences -- the lowest in four years. Barring Arunachal Pradesh, Goa, Meghalaya, Mizoram, Nagaland, Sikkim, all other states handed out the death penalty in 2019. Rajasthan sentenced the maximum number of people to hang, followed by Uttar Pradesh, Madhya Pradesh and Karnataka.
Most death sentences are for murders involving sexual crimes But while the total number of death sentences has fallen, the proportion of cases of murder involving sexual offences has gone up, from 18% in 2016 to 52.94% in 2019. This could be due to an amendment to the POCSO Act 2012, which introduced stringent mandatory minimum punishments and the death penalty for penetrative sexual assault on children.
Disturbingly, in most cases, the youngest were the most vulnerable. In 2019, 39.21% of the total death sentences (40 out of 102) were cases of murder involving sexual offences with victims below 12 years of age.
With few executions, 378 convicts still on death row Executions, however, have not been quick despite strict laws and session courts imposing death sentences. As of December 31, 2019, there were a total of 378 convicts were on death row. This is because after a trial court hands out the death sentence, convicts still have two chances to appeal the decision — in the high court and Supreme Court. If the death sentence is upheld by the higher court, the convict can seek a pardon from the President or state governor in some cases.
Uttar Pradesh has the most number of convicts on death row, followed by Maharashtra and Madhya Pradesh. In fact, UP and Maharashtra house nearly a quarter of all death row convicts — 54 and 45 respectively. Madhya Pradesh has 34.
For murder involving sexual offences, more sentences commuted than confirmed .
In 2019, high courts commuted only 26.8% (15 out of 56) of death sentences for murder involving sexual offences, while confirming 65.4% (17 out of 26) — the highest in four years.
In contrast, 64.7% (11 out of 17) of the death sentences commuted by the Supreme Court were cases of murder involving sexual offences. 57.1% (4 out of 7) of the SC’s confirmations were cases of murder involving sexual offences.
UP, Rajasthan and Maharashtra high courts handed out the most commutations. Maharashtra and Haryana high courts confirmed the most death sentences.
Capital punishment orders of courts in 3 Indian states, 2000-2015
Himanshi Dhawan, May 14, 2020: The Times of India
Almost half the death penalty judgments given by criminal courts in three states were done so on the date of conviction, according to a report by the National Law University, Delhi’s Project 39A which looked at 215 capital punishment orders awarded between 2000-2015 by courts in Delhi, Maharashtra and Madhya Pradesh.
The report expressed concern over this haste in sentencing. “In MP, same-day sentencing was observed in 76.9% of the cases. Maharashtra had same-day sentencing in 34.4% of the cases, but 57% of the cases had sentencing either on the same day or with just a 24-hour gap. Delhi fared relatively better with 53.4% of sentencing hearings taking place at least one week after the conviction,” the report said.
About 322 prisoners across the three states were sentenced to death of which nearly half or 49% of the prisoners were found guilty of murder while 28% had the death penalty imposed for murder involving sexual offences.
The three states were chosen because the death penalty was frequently imposed and a large number of the decisions in capital cases were overturned at appellate level. The report also found that death penalty in India is imposed in a manner that is subjective, arbitrary and does not adhere to the “rarest of rare” principle. “We found that this principle, mandated to be used for death penalty, is an empty doctrine,” Anup Surendranath, 39A executive director, said.
Life imprisonment was not even considered in many cases. According to section 354(3) of the CrPC, life imprisonment is the default option and the death sentence requires special reasons. Instead, courts have considered life imprisonment only in eight out of 43 in Delhi, 22 of 82 in MP, 27 of 90 in Maharashtra.
The courts appeared to have given more importance to brutality of the crime and lack of remorse rather than to mitigating circumstances like socio-economic conditions of the accused, age, or the circumstances that led to the crime. The inadequate nature of arguments made by defence lawyers had an impact on the courts’ not even considering mitigating factors during sentencing. The trial courts mainly relied on aggravating circumstances to impose death sentences. The MP trial courts’ reliance only on aggravating factors to impose death sentence was particularly high.
In as many as 51 judgments out of a total of 82 in MP, no mitigating circumstances were considered during sentencing while 41 out of 90 cases from Maharashtra adopted this approach. In Delhi, in 18 out of a total of 43 cases, the decision did not include consideration of mitigating factors.
Death penalty not open-ended, must have finality: SC
Dhananjay Mahapatra, January 24, 2020: The Times of India
NEW DELHI: Revealing judicial discomfort over death row convicts exploiting procedural loopholes to avoid or delay execution for years, the Supreme Court on Thursday said “it is extremely important for death penalty to attain finality”.
Indirectly referring to continuous and separate litigations by the four Nirbhaya case condemned prisoners to delay execution, a bench of Chief Justice S A Bobde and Justices S Abdul Nazeer and Sanjiv Khanna said, “Many are under the impression that concurrently awarded death penalty (by trial court, high court and the SC) is open-ended and can be argued against as and when one wishes. Finality of death sentence is extremely important. Recent events have shown that. One cannot go on fighting endlessly on this.”
The court also held that post-conviction “good behaviour” in jail may not be sufficient to modify a death sentence as any mitigating circumstances are taken into account by courts at the trial stage. While the court was not against reformation, punishment reflected societal expectation and gravity of crime, the bench said.
The CJI-led bench’s observations came during open court hearing of petitions by one Shabnam and Saleem seeking review of their death sentences. Infuriated by constant objections to their relationship, which had resulted in pregnancy at the time of the crime, Shabnam mixed sedatives in tea and served it to her family members. She then held the heads of her parents and four other family members while Saleem slit their throats. A seventh victim, her brother’s 10-month-old child, was throttled to death. The duo wanted to lay claim over the entire family property.
The bench’s remarks assume significance as the Centre on Wednesday, responding to public resentment over Nirbhaya convicts delaying execution, sought a change in guidelines laid down by the SC in 2014 to protect the rights of death row prisoners. The Centre said the rights of victims and society must also be factored in. When solicitor general Tushar Mehta mentioned this during Thursday’s hearing, the SC said it would separately deal with it.
For Saleem and Shabnam, senior advocates Anand Grover and Meenakshi Arora strenuously attempted to convince the bench that the couple’s exemplary post-conviction conduct should be considered for commuting the death penalty to life imprisonment. Arora said as the couple now had a child to look after the court could exercise forgiveness as they had shown enough signs of reform during incarceration.
The bench asked, “Does the couple having a child mitigate the gravity of their crime? Does it mitigate the murder of a 10-month-old child? Does that mitigate the murder of seven innocent family members? We are not against forgiveness. But it is the law which prescribes punishment for crime. A judge awards punishment as per law, which reflects society’s expectations. We must protect innocent and also punish the guilty. Can a judge forgive a murderer brushing aside evidence if he feels an accused appears innocent?” Responding to mitigating circumstances cited by Grover and Arora, the bench said, “A court examines mitigating circumstances at the time of sentencing. Can post-conviction mitigating circumstances be a ground for commuting death sentence? What we understand is that the sentence should be proportionate to the crime. Seven members of a family were killed through meticulous planning and in cold blood. Is the death sentence proportionate to this crime? All three courts have said yes.
“If post-conviction good behaviour is accepted as mitigating circumstances, then there never will be finality to sentences and it will open the floodgates for petitions seeking commutation of all kinds of sentences.”
The bench then reserved its verdict on the review petitions.
HC says, execution delay against rights, commutes death
Shibu Thomas, July 30, 2019: The Times of India
The Bombay high court commuted the death penalty given to two convicts in the 2007 Pune BPO employee rape and murder case to life imprisonment of 35 years, citing the “inordinate and unreasonable” delay in executing them.
A division bench of Justices Bhushan Dharmadhikari and Swapna Joshi said the 35-year jail term would include the time they have already spent in jail.
Purushottam Borate (38) and Pradeep Kokade (32), who were due to be executed on June 24, 2019, had approached the high court through their lawyer Yug Chaudhry. The duo were sentenced to death for raping and murdering a 22-year-old woman employee of a BPO company in Pune.
2016-19: criminals guilty of sexual violence more likely to hang
Himanshi Dhawan, May 14, 2020: The Times of India
A criminal found guilty of sexual violence is more likely to hang now than four years earlier as trial courts in some states have an increasing propensity to award death for such crimes, suggests a report.
In 2016, MP awarded death in 33.3% of such cases; this rose to 81.8% in 2019. Similarly, in Maharashtra, 45.5% of such cases were awarded capital punishment four years ago which rose to 71.4% in 2019. The data on the two states was collated by NLU, Delhi’s Project 39A, which studies death penalty cases in India. Project 39A executive director and NLU assistant professor Arup Surendranath said, “In the post-Nirbhaya context, social and political conversations have been inclined towards harsher punishment as a means to address the growing concern over such cases.”
2018-20: analysis of court verdicts
Himanshi Dhawan, Oct 23, 2022: The Times of India
There is a popular maxim — justice delayed is justice denied. But what happens when judgments are given in haste? In a majority of cases related to minor’s rape or murderrape of minors, trial courts have convicted and sentenced the accused within a few days, a report has revealed. Of the 18 cases of minor rape where death penalty was imposed, in 13 (72%) of the cases, trial courts took fewer than two days to decide on conviction and sentencing while the remaining four cases were decided within a week. Minor-rape murder cases went in a similar vein. In a total of 106 such cases, in 63 or about 60% cases, trial courts took the decision of holding the person guilty and sentencing them to death penalty in less than two days. In 33 cases, the process was completed within a week. National Law University Delhi’s Project 39A analysed 304 death sentences across 221 cases in its report ‘Death penalty sentencing in India’s trial courts 2018-2020’.
Of the death sentences analysed, there were 125 cases of murder-rape of a minor and minor rape. In these 15% of the cases were decided in less than a week while 28% cases were decided in less than 3 months. This data calls into question sentencing practices in lower courts and is an analysis of the 2019 amendments to the Protection of Children Against Sexual Offences (Pocso) act that introduced the death penalty provision as punishment for those found guilty of aggravated penetrative sexual assault of a minor. In cases of murder or rapemurder of an adult, the courts took a two-day period to impose death penalty in half the cases. For instance, of the total 23 cases of murder involving sexual violence with an adult, 13 (56%) ofthe cases were decided within two days while of the total 126 murder cases, the courts imposed death penalty in less than two days in 64 or 50% of the cases.
According to report co-author Zeba Sikora, the short gap is an indication of the mechanical manner in which people are sentenced to death. “Little or no time between these two phases of a trial means that the accused person’s legal team has not been given sufficient time to present mitigating circumstances relating to the accused.
While this is a problemacross the board in death penalty cases, data from trial courts shows that the problem is more acute in cases involving sexual offences against children. Simply put, this means that many people and more so, persons convicted for sexual crimes against children, are sentenced to death without being given the opportunity for an effective sentencing hearing,” Sikora said.
The report also points out that judges dismissed the alternative of life imprisonment and sentenced the convicted to death ‘by default’ in nearly 30% of the sentences involving minor rape.
Reasons for this haste range from public pressure after a heinous crime, as well as more scrutiny of the judicial process because of the frenzy around it. The report shows that this scrutiny might be adversely affecting the convicted and the judicial system.
Earlier, research by Project 39A had revealed that fewer than 5% of the death sentences imposed by trial courts between 2000-15 were confirmed up the judicial ladder, and around 30% ended in acquittals upon appeal which indicates that decisions on levying capital punishment might be taken under pressure.
Sikora was optimistic as issues of death penalty sentencing have been referred to a Constitution Bench.
Death only when life term inadequate: SC/ 2019
AmitAnand Choudhary, March 13, 2019: The Times of India
Holding that the death sentence should be awarded for heinous crimes only when life imprisonment appears to be wholly inadequate, the Supreme Court on Tuesday spared a man from the gallows and sentenced him to 25 years in jail for raping and killing a minor girl in 2015.
A bench of Justices N V Ramana, M M Shantanagoudar and Indira Banerjee convicted a school bus driver who had raped and murdered the child in Jabalpur and refused to give credence to some discrepancies in the statement of witnesses. It said traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial.
The accused had taken the ground that there were procedural lapses on the part of police and his alleged confession, which led to the recovery of the victim’s body, was liable to be rejected as the panchnama was drawn at the police station and not at the spot from where the body was recovered. He said the prosecution’s case mainly rests on the last-seen circumstances, but the said circumstance has not been duly proved.
SC: Benefit of doubt must not be fanciful
The court, however, rejected his plea and said there was sufficient evidence to prove his guilt and upheld the trial court and HC’s order of conviction. But the bench commuted the punishment to 25 years’ imprisonment without remission. “As has been well-settled, life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment having regard to the relevant facts and circumstances of the crime,” the bench said.
Rejecting the plea of the accused for granting him the benefit of the doubt, the bench said courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused.
“In our considered opinion, all the circumstances relied upon by the prosecution are proved beyond reasonable doubt and consequently the chain of circumstances is so complete so as to not leave any doubt in the mind of the court that it is the accused and accused alone who committed the offence in question. It is worth reiterating that though certain discrepancies in the evidence and procedural lapses have been brought on the record, the same would not warrant giving the benefit of the doubt to the accused/appellant. It must be remembered that justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt given to an accused must always be reasonable, and not fanciful,” the bench said.
Ghastly nature of crime not sole criterion for giving death: SC
February 10, 2022: The Times of India
Ghastly nature of crime not sole criterion for giving death: SC
New Delhi: Holding that the abhorrent nature of a crime can’t be the sole and decisive factor for awarding the death sentence, the Supreme Court said the possibility of an offender reforming and his socio-economic background and other mitigating factors can’t be ignored while awarding the sentence.
It commuted the capital punishment awarded to a convict to 30-year jail in a rapecum-murder case of a sevenyear-old girl in UP, reports Amit Anand Choudhary.
A bench of Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar said that the abhorrent nature of the crime and its repulsive impact on society also cannot be ignored while sentencing.
Nature of crime and impact on society can’t be ignored: SC
The SC said abhorrent nature of the crime and its repulsive impact on society also cannot be ignored while sentencing and in such cases, the sentence of life imprisonment be awarded without application of provisions of premature release/remission for a substantial length of time as has been done by the apex court in several cases. “It could readily be seen that while this court has found it justified to have capital punishment on the statute to serve as deterrent as also in due response to society’s call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society,” Justice Maheshwarisaid.
The SC said the delicate balance expected of the judicial process has led to another midway approach, in curtailing the rights of remission or premature release while awarding imprisonment for life, particularly when dealing with crimes of heinous nature. The bench disapproved the trial court and the Allahabad HC for awarding death sentence on the basis of the nature of crime and not taking into consideration mitigating factors like the offender had no criminal antecedent.
Crime and capital punishment
Rape- murder and capital punishment
Dhananjay Mahapatra, LEGALLY SPEAKING - Rape-murder: Hard to say which case'll lead to noose, May 8, 2017: The Times of India
Rape and murder of 23 year-old paramedic Nirbhaya on December 16, 2012 had sparked unprecedented national outrage.Deep internal wounds caused by wolves of lust snuffed out her life 13 days later in Singapore, where she was shifted for emergency treatment.
The Supreme Court termed the crime “brutal, barbaric and diabolic“ to award death penalty to all four adult accused. Thunderous applause followed the unanimous decision of Justices Dipak Misra, R Banumathi and Ashok Bhushan. Members of society , who had defied prohibitory orders on cold December nights of 2012 to hold candle-light marches in the capital, clapped in approval.
Did the SC show similar sensitivity in the last two decades for society's cry for justice in even more shocking rape-cum-murder cases involving extreme brutality?
What separated the Nirbhaya case from these, which happened away from cities, was the absence of public outrage and candle-light marches.
In the hinterland, life continues to be cheap, that of a girl child even cheaper.Rape and murder of a girl is blamed more on her destiny than the accused. Daily struggle for livelihood quickly douses the outrage, and candles are far too costly to buy and burn for the cause of a dead girl.
Is award of death penalty dependent on an individual judge's sensitivity and volatility of his judicial conscience?
In February 1999, a bench of Justices G B Pattanaik and S Rajendra Babu commuted death penalty to life sentence for Akhtar, who was concurrently awarded death penalty by the trial court and Allahabad HC for raping and murdering a minor girl. The logic, “The accused has committed murder of the girl neither intentionally nor with pre-meditation. The accused found a young girl alone in a lonely place, picked her up for com mitting rape; while committing rape and in the process by gagging, the girl had died. It cannot be categorised as `rarest of rare' case to justify imposition of death penalty .“
In December 1999, an SC bench of Justices G T Nanavati and K T Thomas in Maharashtra vs Suresh found the man guilty of kidnapping a four-year-old girl, sexually assaulting her and then murdering her. The trial court had awarded him death penalty .But the HC acquitted him.The SC said the HC had gravely erred by ignoring material evidence. But it commuted death sentence to life imprisonment saying the man was acquitted, even though erroneously , by the HC.
In October 2001, in Bantu vs Madhya Pradesh, Justices R C Lahoti and Ashok Bhan awarded life sentence to a man found guilty of raping and murdering an 11-year-old girl. After murdering her, he had chopped off her ankles with an axe to take her silver anklets. The parents discovered her body and severed limbs in the fields.
In Sebastian vs Kerala, Justices H S Bedi and J M Panchal in October 2009 commuted death sentence to life imprisonment for a man who had kidnapped a two-year-old child, raped her and then murdered her brutally . Despite recording that the man was a known paedophile, the SC said imprisonment for entire life was just punishment.
In September 2013, Justices C K Prasad and Kurian Joseph in Rajasthan vs Jamil Khan found a man guilty of brutally raping and killing a five-year-old. He had packed the body in a gunny bag and left it in a train. Commuting the trial court's decision to impose death penalty, the SC awarded 24 years jail term to him.
In February 2014, Justices B S Chauhan and M Y Eqbal found a man guilty of raping a friend's daughter and murdering her by strangulation.The girl used to call the rapist `uncle'. The SC set aside the concurrent decisions of the trial court and the HC to award death sentence and replaced it with 35 years jail term. It said, “We are of the view that in spite of the fact that the appellant has committed a heinous crime and raped an innocent, helpless and defenseless minor girl who was in his custody , he is liable to be punished severely, but it is not a case which falls within the category of `rarest of rare’.“
Apparent lack of uniformity in awarding sentences, even in gruesome murder cases, was discussed by the SC in November 2012 in Sangeet vs State of Haryana. “In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately , not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judgecentric sentencing rather than principled sentencing,“ it had said.
It said the Bachan Singh case (1980), contrary to popular perception, did not endorse the principle of aggravating and mitigating circumstances to weigh imposition of capital punishment. “ Aggravating circumstances relate to crime while mitigating circumstances relate to criminal. A balance-sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review,“ it had said. We hope the Nirbhaya judgment will make the SC take a relook at the nuances of sentencing so as to inject uniformity .
Safeguards introduced by Supreme Court rulings
February 1, 2020: The Times of India
A trial court’s decision to postpone, “till further orders”, the execution of the Nirbhaya convicts underlines how safeguards introduced by Supreme Court rulings expanding death penalty jurisprudence can be exploited. The dilly dallying by Tihar administration, experts say, is by no means any less responsible for the delay.
As far back as 1982, the apex court had acted to prevent “judicial vagaries” in imposing death sentence. In the Harbans Singh vs State of UP case, the court ruled that till the time the convicts exhausted all their legal options, none would be hanged. The court inserted the protection after it emerged in this case that one convict was executed, but a second person was awarded life imprisonment even as the third was set to be hanged.
This ruling is reflected in Delhi’s revised jail manual as Rule 854, and was cited by the convicts’ lawyers on Saturday in the trial court, which postponed their execution indefinitely, giving the condemned prisoners a reprieve for the second time in two weeks. Going by the strategic manner in which the four men have exploited loopholes to file mercy, curative and review pleas in close succession, such dilatory tactics may well push the date of execution to March or beyond, since two of the men are yet to file a mercy plea.
This is for the second time that the execution of the death warrants has been deferred. The first order, issued on January 7 for January 22, was stayed on January 17. The second warrant, issued on January 17, for February 1, was stayed.
A 2014 ruling by Supreme Court on capital punishment in the Shatrughan Chauhan vs Union of India case also figures as a major factor in deferment of the death warrant. It provides a 14-day window to a condemned person to make “peace with God” and accept his fate, after the rejection of mercy by President. In Mukesh Singh’s case, President Ram Nath Kovind rejected his mercy plea on January 17, well before the scheduled hanging date of January 22. Yet, the Tihar administration expressed its helplessness in carrying out the sentence as that would have breached SC’s mandate.
There is, however, merit in the allegations that the jail administration failed to act quickly in July 2018, once Supreme Court dismissed the review plea of three convicts. With the judicial process having got over, experts said that it was when the jail and the trial court concerned could have gone ahead and issued a death warrant. “The process of availing the remedies would have started after July 2018 itself. The prosecution sat for almost two years in carrying out a sentence confirmed by all levels of the judicial hierarchy. There is no rule that says that a death warrant can’t be issued before filing of the mercy plea. After all, the situation remained unchanged between July 2018 and January 7 this year,” a senior judge said. Interestingly, the jail administration changed its stance on Saturday and challenged the application for a stay, arguing that the death-row convicts could be hanged separately. Earlier, before Delhi high court, it had conceded that the rules forbade separate execution of the convicts sentenced to death in the same case.
The trial court, however, rejected this argument and partially agreed with advocate AP Singh, the counsel for the three convicts — Pawan, Vinay and Akshay — that their legal remedies were yet to be exhausted.
Constitutional and legal remedies available
Aamir Khan2, Court defers Nirbhaya case hangings, no new date set, February 1, 2020: The Times of India’'
Redress of grievances through procedure established by law is the hallmark of any civilised society, said a Delhi court on Friday and “postponed till further orders” hanging of the four convicts in the 2012 Nirbhaya case.
Additional sessions judge Dharmendra Rana stated, “The courts of this country cannot afford to adversely discriminate against any convict, including death row convicts, in pursuit of his legal remedies by turning a Nelson’s eye towards him.”
Special prosecutor Irfan Ahmed said that Mukesh had exhausted all his constitutional and legal remedies and the mercy plea of another convict Vinay Kumar Sharma was pending. In case of the other two, Pawan and Akshay, there weren’t any pleas pending. The state prosecutor, therefore, said that barring Vinay, the other three men could be hanged on February 1.
Trial court cites prison rules, says 3 convicts can’t be hanged separately
Ahmed submitted that any relief to the three convicts apart from Sharma was tantamount to abuse of the process of law and lead to travesty of justice.
The court, however, dealt with the prosecution’s contention stating that Rule 836 of the Delhi Prison Rules provided that if an appeal or an application is made by only one convict, the execution of sentence shall be postponed in the case of co-convicts. Appearing for the three convicts — Sharma, Gupta and Thakur — advocate A P Singh argued that while Sharma’s mercy plea had been filed, convict Thakur intended to file a mercy plea before the President of India.
Amicus curiae Vrinda Grover and advocate Soutik Banerjee, who appeared for convict Mukesh, submitted that the convict had been “earnestly” and “sincerely” pursuing his legal remedies without any unnecessary delay.
Grover stressed that since all convicts were held guilty for the same offence and were convicted by a common judgment their fate could not be segregated and convict Mukesh’s case couldn’t be dealt with separately.
Grover relied on a precedent of the Supreme Court in the matter of Harbans Singh versus the state of UP to contend that the execution of the death sentence would lead to an “irreversible and irreparable” process. She also argued that in case the mercy plea of similarly placed convicts is favourably considered by the President of India, the change in circumstance would entitle Kumar to file a fresh mercy plea.
Present in court were Nirbhaya’s parents, who paid close attention to the proceedings. Advocates Seema Kushwaha and Jitender Kumar Jha, who represented them, argued that the convicts were trying to thwart justice by adopting delaying tactics. Jha also stated that according to a provision of the Delhi Prison Rules, 2018, the jurisdiction to decide such applications, filed by convicts, lay with the government and not with the court.
Unimpressed with the contention, the court observed, “I cannot agree with the contention of the counsel for the victim that the jurisdiction to dispose of the application at hand vests with the government and not this court.” Neither did the provision, it went on to add, confer any power upon the executive authority to cause the order of the death sentence to be carried into effect nor did it give any judicial power to the authority to deal with such applications.
The court also pointed out that the execution of sentence shall in all cases be postponed pending receipt of orders of the President. The court, as a result, had no “hesitation in observing” that the execution of warrant with respect to convict Vinay ought to be postponed. The court held, “As a cumulative effect of the discussion, I am of the opinion that the execution of warrants issued by this court by order dated January 17, 2020 deserves to be postponed till further order.”
Section 364A of the Indian Penal Code
Sec 364A: Too harsh a provision?
TIMES NEWS NETWORK 2013/07/05
New Delhi: The Supreme Court had laid down the “rarest of rare” criteria for courts to award death penalty only in select heinous and gruesome murder cases.
In this background, can Parliament enact a law providing for mandatory death penalty for those found guilty of murdering a person after kidnapping him to demand ransom? Would this not amount to pushing every offence of kidnap for ransom involving murder of the victim into ‘rarest of rare’ category without a judicial determination to that effect?
This question was framed by Justices T S Thakur and S J Mukhopadhaya while referring to a petition challenging the constitutional validity of Section 364A of Indian Penal Code, which imposes mandatory death penalty in kidnap for ransom involving murder of the kidnapped.
The petition was filed by one Vikram Singh, who was convicted under Sections 302 (murder) and 364A of the IPC and awarded death penalty on both counts. The apex court had upheld his conviction and sentence.
But in his petition before the Supreme Court, his counsel D K Garg argued that if the court came to the conclusion that punishment provided under Section 364A of IPC was unconstitutional, then a lenient view could be taken on the death penalty awarded to his client under Section 302.
He argued that Section 364A made even a first time offender liable to be punished with death, which was too harsh to be considered just and appropriate.
Appearing for the Union government, additional solicitor general Sidharth Luthra argued, “It is within the legislative competence of Parliament to provide remedies and prescribe punishment for different offences depending upon the nature and gravity of such offences and the societal expectation for weeding out ills that afflict or jeopardize the lives of citizens and the security and safety of vulnerable sections of the society, especially children who are prone to kidnapping for ransom and being brutally killed if their parents are unable to pay the ransom amount.
“The provisions of Section 364A are not only intended to deal with cases of kidnapping for ransom involving murder of victim but also cases in which terrorists and other extremist organizations resort to kidnapping for ransom or to such other acts only to coerce the government to do or not to do something.”
The court agreed with Luthra that the petitioner had not questioned the competence of Parliament in enacting the law and said the petitioner challenged it only on the ground of harshness.
“The questions (asked by the petitioner) may require an authoritative answer... The peculiar situation in which the case arises and the grounds on which the provisions of Section 364A are assailed persuade us to the view that this case ought to go before a larger bench of three judges for hearing and disposal.”
Judiciary vs Parliament, the debate
Who should debate death penalty: SC or Parliament?
The Times of India, Aug 03 2015
For the past many decades, we have witnessed a psychological and constitutional battle between two classes -those seeking abolition of death penalty and others who lean for its retention. Yakub Abdul Razak Memon's last-gasp attempts to seek stay of his execution has brought the spotlight back on the debate between abolitionists and retentionists.
Petitions to save Yakub from the gallows assumed a Phoenix-like character as the execution time approached.Dismissal of one was quickly followed by another. Such is the importance given to right to life by the Supreme Court that it opened its doors postmidnight and heard Yakub's plea till the crack of dawn.
The rejection of his final appeal drew the ire of activistlawyers who had virtually taken the legal battle as an all-out war against retentionists.
Their sombre mood soon turned combative. Many renowned advocates who have doggedly fought for human rights for years sniped at the justice delivery system and government, saying a “lynch mob“ and “bloodlust“ attitude had resulted in a “tragic mistake by the SC“.
Till 1973, the law had given absolute discretion to the judges to choose between death penalty and life imprisonment in murder cases. Despite this, the SC had repeat edly cautioned the trial courts to exercise discretion, keeping in mind the criminal and not the crime.
In 1973, the new Criminal Procedure Code made it imperative that life imprisonment was the rule and death penalty the exception for murder convicts. It also said the judge was duty-bound to record special reasons for which heshe preferred to award death penalty instead of life term.
The analysis of `special reason' led the SC to devise the `rarest of rare' doctrine for award of death penalty in the Bachan Singh case in 1982 while upholding the validity of capital punishment. This we will deal with a little later.
Even prior to the enactment of the new CrPC, a five judge SC bench in Jagmohan Singh vs state of UP (1973 AIR 947) had answered alleged arbitrariness in imposing death penalty , which the petitioner said extinguished every constitutional right of a convict, and that there was no guideline for judges in deciding which cases warranted imposition of capital sentence.
It had said, “The exercise of judicial discretion on well-recognized principles is, in the final analysis, the safest possible safeguard for accused.“
Seven years later, a threejudge bench headed by Justice V R Krishna Iyer dealt with a similar question in Rajendra Prasad vs State of UP (1979 AIR 916). It had cautioned against individual cases being made examples to argue either for abolition or retention.
“Personal story of an actor in a shocking murder, if considered, may bring tears and soften the sentence. He might have been a tortured child, an ill-treated orphan, a jobless man or the convict's poverty might be responsible for the crime,“ it had said.
However, it upheld the constitutional validity of death penalty saying there could be a situation where law-breakers brutally kill law enforcers trying to discharge their function. “If they are killed by designers of murder and the law does not ex press its strong condemnation in extreme penalization, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence.“
Four years later, a constitution bench by four-to-one majority upheld the validity of death penalty in Bachan Singh case on August 16, 1982. It had classified murders into two broad categories -one committed purely for private reasons and the other which “unleash a tidal wave of such intensity , gravity and magnitude, that its impact throws out of gear the even flow of life“.
It explained the stand of abolitionists. “Statistical attempts to assess the true peno logical value of capital punishment remain inconclusive.Firstly , statistics of deterred potential murderers are hard to obtain. Secondly , the approach adopted by the abolitionists is over simplified at the cost of other relevant but imponderable factors, the appreciation of which is essential to assess the true penological value of capital punishment. The number of such factors is infinitude, their character variable, duration transient and abstract formulation difficult,“ it had said.
However, it had sounded caution. “Judges should never be blood-thirsty . Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of In dia, show that in the past, courts have inflicted the extreme penalty with extreme infrequency -a fact which attests to the caution and compassion they have always brought to bear on the exercise of their discretion.“
The statistics and studies in the past few decades have been woefully inadequate to help the SC arrive at a definitive opinion about the efficacy of death penalty. It is time for abolitionists to spend their energies convincing representatives of people to raise the matter in Parliament and bring an amendment to the provisions of law providing for death penalty rather than blame the judiciary for imposing the punishment in `rarest of rare' murder cases.
Find alternatives to hanging: SC to government
Krishnadas Rajagopal, October 6, 2017: The Hindu
Death convicts should die in peace and not in pain, it says. Why can’t hanging as a means of causing death of condemned prisoners stop? Find alternatives to death by hanging, SC tells govt.
The condemned should die in peace and not in pain. A human being is entitled to dignity even in death, the court observed.
The government should look to the “dynamic progress” made in modern science to adopt painless methods of causing death.
A Bench led by Chief Justice of India Dipak Misra issued notice to the government and ordered it to respond to the issue in the next three weeks.
“Legislature can think of some other means by which a convict, who under law has to face death sentence, should die in peace and not in pain. It has been said since centuries that nothing can be equated with painless death,” Chief Justice Misra observed in the order.
The court clarified that it was not questioning the constitutionality of the death penalty, which has been well settled by the apex court, including in the Bachan Singh case reported in 1983.
The court said Section 354 — which mandates death by hanging — of the Code of Criminal Procedure has already been upheld.
However, the provision of hanging to death may be re-considered as “the Constitution of India is an organic and compassionate document which recognises the sanctity of flexibility of law as situations change with the flux of time.”
The fundamental right to life and dignity enshrined under Article 21 of the Constitution also means the right to die with dignity, the court said.
The order comes on a writ petition filed by Delhi High Court lawyer Rishi Malhotra, who sought the court’s intervention to reduce the suffering of condemned prisoners at the time of death. Mr. Malhotra said a convict should not be compelled to suffer at the time of termination of his or her life. “When a man is hanged to death, his dignity is destroyed,” he submitted.
During the hearing, Justice D.Y. Chandrachud, one of the three judges on the Bench along with Justice A.M. Khanwilkar, pointed out that in the U.S. a prisoner suffers for almost 45 minutes before his death by lethal injection.
Legislative wants expansion, judiciary wants restriction
Maitreyi Misra and Ruchi Chaudhury, Divergence on death penalty: The legislative expansion and judicial restriction of capital punishment in India, February 12, 2019: The Times of India
The statistics on the state of death penalty in 2018 is an indication of the confusion that besets use of death penalty in India. Drastically different treatment by the legislature, trial courts and the appellate judiciary further intensifies competing tensions in administration of the death penalty.
Calls for death penalty began early on in the year in the backdrop of incidents in Kathua and Unnao. 2018 also saw the prime minister encouraging the death penalty in his Independence Day speech and amendments to IPC and Pocso introducing the death penalty for rape of children.
As far as its judicial treatment is concerned, trial courts in 2018 imposed a record number of 162 death sentences – the highest in nearly two decades. The Supreme Court, on the other extreme, commuted 11 out of the 12 death sentence cases it decided and continued to signal concerns with administration of the death penalty by courts below.
The legislative expansion of death penalty is not new. In the last five years, Parliament passed two other laws introducing death penalty. The Delhi gang rape prompted amendments to IPC in 2013 introducing death penalty for certain sexual offences. In 2016, the Anti-Hijacking Act was passed prescribing death penalty as well.
The legislature guided by political and public reactions has immense faith in death penalty as a response to heinous crimes. But, irrespective of public notions, the law requires courts to consider aspects beyond just the crime when imposing death sentence.
Socioeconomic circumstances of the individual, age, past history, time spent in prison, and the probability of reformation are some factors, which the Supreme Court itself has declared as integral to the sentencing process. However, in reality all levels of the judiciary have for long struggled with using their own terms of reference in administering the death penalty uniformly.
Given this context, expanding the use of death penalty in an already constitutionally suspect framework threatens to weaken the criminal justice system even further. Lack of cohesion within the judiciary is evident from multiple instances when the appellate judiciary has pushed back against the eagerness of trial courts in imposing death penalty.
The Supreme Court has time and again indicated that death sentence is being used by the lower courts more liberally than is intended. The ‘Death Penalty India Report, 2016’ found that over a 15-year period from 2000 to 2015, less than 5% of death sentences were eventually upheld by the Supreme Court.
This trend seems to be continuing. In 2018 itself, various high courts commuted death sentences in 55 cases, of which 24 involved sexual offences. Interestingly, out of the nine death sentences imposed by trial courts under the 2018 law, six were commuted by the respective high courts.
On its part the Supreme Court commuted 11 death sentences in 2018, including a dissenting opinion by Justice Kurian Joseph calling for the abolition of the penalty itself. Six of these commutations by the Supreme Court involved charges pertaining to sexual offences. Be that as it may, the Supreme Court’s performance on death penalty sentencing is also rife with inconsistencies as traced by ‘Lethal Lottery: The Death Penalty in India’, a report analysing over 50 years of the Supreme Court’s jurisprudence on this issue.
It is evident that death penalty encounters different responses at various levels of the judiciary. While the trial courts demonstrate an exaggerated affection for death penalty, appellate courts seem to be increasingly sceptical.
This incoherence has been particularly glaring in the past year. The legislature’s faith in death penalty, then, is in sharp contrast to this reality and its reliance betrays an honest evaluation of the criminal justice system.
Procedure before the execution
The procedure in brief
Abhinav Garg, Dec 20, 2019: Times of India
HOW THE PROCESS BEGINS
1. Starts with fast-track
Trial courts (or fast-track courts) handling cases of sexual offences against women and children are bound by deadlines. They need to decide the case within six months after filing of the charge-sheet. But on an average, trial courts take between 1 and 2 years to reach a verdict notwithstanding the day-to-day hearing in cases mandated by Section 309 CrPC.
2. Higher courts But high courts and the Supreme Court deal with such matters on a case-by-case basis. There is no fixed time-frame; it is up to the chief justice or the presiding judge to take a call.
3. Review plea
After conviction by the Supreme Court, a convict gets 30 days’ time to seek review under Article 137 of the Constitution. Even after a review plea is dismissed, the convict can file a curative petition invoking Article 142 (inherent powers) of the Supreme Court. There is no time-frame within which it has to be filed; but courts have largely accepted six months after dismissal of review plea as the standard.
4. Mercy plea
As a last resort, a convict has right to seek mercy by filing a petition directly with the President. The process provided under Article 72, however, doesn’t provide for any prescribed procedure to deal with such mercy petitions.
Indian courts and jail administration are generally lenient if there is delay in filing of review, curative or mercy petitions by a convict, recognising that imprisoned persons find it difficult to hire lawyers and prepare petitions.
TWO CASES THAT SHOW HOW PLEAS FOR MERCY PROGRESS Nithari killings: How Koli escaped the plea at the 11th hour in 2014
Surendra Koli's hanging was fixed for September 2014 but the SC stayed the execution in the middle of the night over a pending review petition
16 FIRs were registered against Surendra Koli for rape and murder in the Noida serial murders case involving him and his employer Moninder Singh Pandher that came to light in 2006. Death sentence was handed to Koli in 11 cases by the trial court, while 5 cases are still pending.
- In 2009, the first death sentence to Koli was awarded by the trial court. Allahabad HC confirmed the death sentence.
- In 2011, SC dismissed the appeal and upheld the death sentence. Koli then filed a mercy petition.
- In 2014, President rejected the mercy petition. The hanging was fixed for September after the trial court issued a black warrant (the final order). However, SC stayed the execution at 2am over Koli’s pending review petition after lawyers appeared for him and got him a reprieve on this ground. SC rejected the review in October.
In 2015, Koli and an NGO separately moved the Allahabad HC against hanging on the grounds of delay in deciding the mercy petition. The high court commuted death to life citing 2014 SC ruling in Shatrughan Chauhan case. Since then, Koli has been convicted and awarded death sentence in 10 other cases, including one in April 2019. Due to multiple cases and trials and witnesses/victims, justice has been delayed with each case likely to go through the full cycle of appeals and review. Jurisprudence in capital punishment argues that since death is irrevocable, authorities should wait for a convict to exhaust all legal options before carrying out the sentence.
Rajiv Gandhi assassination: Decades of back and forth over mercy petitions
Nalini Sriharan, arrested for being part of the plot to kill Rajiv Gandhi in May 1991, is India's longest-serving woman prisoner Nalini Sriharan was arrested for being part of the plot to kill former Prime Minister Rajiv Gandhi in May 1991. She is the longest-serving woman prisoner in India.
Though all 26 accused were given the death penalty by a Special TADA court in 1998, SC in 1999 confirmed capital punishment only in the case of Murugan, Santhan (both Sri Lankan Tamils), AG Perarivalan and Nalini, wife of Murugan.
- In 2000, Nalini, however, escaped the noose following a Tamil Nadu Cabinet decision and the governor’s assent to commute her death penalty to life. The clemency petitions of the other three were rejected by the President in 2011.
- In 2011, execution of three convicts was fixed for September 9 that year but Madras high court stepped in and stayed the move. The matter was transferred to the SC.
- In 2014, SC commuted the death sentence on grounds of delay in disposing of mercy pleas. It also said the state government may consider freeing the convicts under powers vested with it. TN cabinet wanted to immediately release Santhan, Murugan, Perarivalan, Nalini, Robert Pious, Jayakumar and Ravichandran and sent its decision to Centre under Section 435 CrPC. But Centre secured a stay from the top court.
- In 2017, SC dismissed the Centre’s curative plea seeking to re-impose death penalty on Nalini and other convicts.
- In 2019, Madras high court granted Nalini 30 days’ parole. Nalini has also sought remission of her sentence from the Tamil Nadu governor.
Dos and Don'ts of execution by hanging
There has to be a minimum gap of 14 days between the date of execution and the date when a convict's mercy petition is rejected — counted from the date of receipt of such communication — as per the Model Prison Manual 2016.
When more than one person is scheduled to be executed by hanging, an appeal to a higher court or a special leave to appeal to the Supreme Court by even one of the convicts is enough to postpone the hanging of all the convicts. All executions by hanging are to be carried out early in the morning before it gets too bright, with the convict's hands tied behind his back. However, no convict can be executed on a public holiday.
Heavier the prisoner, the easier it is to execute him — as heavier convicts require a lesser drop distance needed to break the neck and sever the spine. The rope, made of cotton yarn or manila, should be of 2.59-3.81 cm in diameter and should have wax or butter applied to it. Two spare ropes per convict are kept in reserve, ready on the scaffold, in case of a mishap while carrying out the execution.
No prisoners are allowed where the hanging is to be carried out and are to be kept under lock and key till the execution takes place. Even the convict to be hanged is not allowed to see the gallows — his face is to be covered by a cotton cap with a flap, with the body left hanging for at least 30 minutes.
Convicts get 14 days if mercy plea is rejected
Somreet Bhattacharya, Dec 13, 2019 Times of India
The hanging of the four Nirbhaya gang-rape and murder case convicts may be imminent but it’s unlikely to take place in the next few days. Supreme Court is scheduled to hear a review petition filed by one of the convicts, Akshay Singh, on December 17, although the 30-day window for filing mercy pleas is now over, Tihar Jail authorities said.
The jail authorities also have to give a 14-day period to the convicts to “mentally prepare” for the execution, write a will, etc.
Earlier this week, a review petition filed by one of the convicts, Pawan Gupta, was rejected by the apex court. Another convict, Vinay Sharma, who had appealed for a mercy from the President, later withdrew claiming that he did not sign it. He also sought for a permission to file a fresh plea.
Convicts to get 14 days if mercy plea is rejected
Speaking to TOI, former Tihar jailer Sunil Gupta explained that unlike in the past, jail authorities now have to follow jail rules drafted after the hanging of Parliament attack convict Afzal Guru. Under this, the convicts will be granted a provision to seek a curative petition even after the mercy plea to the President is rejected. The petition is ,however, subjected to its admission by the court.
Gupta, who served as a jailor and legal officer with the Tihar Jail since 1981 and has witnessed 14 hangings, including that of Afzal Guru, said the new prison rules, prepared on the basis of a petition by Shatrugan Chauhan, allow the death row convicts to meet their family members, who will have to be clearly informed about the rejection of the mercy pleas, in writing well in advance before the hanging. This was corroborated by other sources too.
Under the jail rules, implemented in 2018, the convicts as well as their families will be handed the death sentence in a red envelope during the 14-day period. The acknowledgement and date of its receipt have to be entered in a register with the superintendent.
“During this period of 14 days, the convicts will be allowed to prepare their will and hand over their personal belongings under the supervision of the jail superintendent. A death row convict would also be shifted to a brightly lit, solitary confinement cell where they will be kept under the watch of a warden through the day,” said Gupta.
Gupta recalled that convicts under death row often go into bouts of anxiety and depression after their mercy plea is rejected. “I remember in the cases of Ranga and Billa, Kartar and Ujagar Singh, we had to be extra careful about their health and mental condition before the actual execution took place.
For the Nirbhaya case convicts, the jail authorities should be prepared for such circumstances,” he said.
On Thursday, Nirbhaya’s mother filed another petition asking the government to file a status report on the steps being taken for the execution of the four men and asked for expediting the execution of the death sentences.
Pre-execution meet between convict and kin
The Times of India, Jan 22 2016
Pre-execution meet between convict & kin now a must
A final, pre-execution meeting between the death row convict and his family members has been made mandatory under a new prison manual finalised by the home ministry . This comes in the wake of the erstwhile UPA government coming under severe criticism for having hanged Parliament attack convict Afzal Guru without letting his family meet him for a last time.
Even the letter intimating his family of the decision to execute him had reached his wife after Afzal had already been hanged. The new prison manual provides for legal aid to death row convicts at all stages, even after rejection of their mercy petitions.
The new model prison manual running into 32 chapters aims at bringing basic uniformity in laws, rules and regulations governing the administration of prisons and the management of prisoners all over the country .
Provision of legal aid to prisoners sentenced to death at all stages, even after rejection of mercy petitions, facilitating and allowing a final meeting between a prisoner and his family have been incorporated in new Chapter XII (Chapter XI of the 2003 manual).
Other key changes for death row convicts include procedure and channels through which mercy petitions are to be submitted, communication of rejection of mercy petitions and furnishing necessary documents, such as court papers, judgments, to the prisoners. Regular mental health evaluation for death row prisoners, physical and mental health reports to certify that the prisoner is in a fit physical and mental condition are key provisions, according to a home ministry statement.
Convicts must be hanged at same time
Somreet Bhattacharya, Dec 13, 2019 Times Of India
Tihar Jail authorities have a challenge at hand — hanging the four convicts in the Nirbhaya gangrape and murder case at the same time. It is for the first time that four persons will be hanged simultaneously from the same gallows in the history of the jail. Sources say a new technique is being tested to allow all four nooses to be fitted onto the existing gallows with some design changes and check whether it can hold the weight.
The sources said it is mandatory for them to execute all four convicts at the same time. If one of the convicts falls sick or unconscious due to anxiety, the execution has to be called off.
At least two trial runs have been conducted to check whether the frame can hold the weight for at least three hours before the convicts are declared dead. A team of jail officials has been for med to inspect the entire restructuring process.
Jail sources say that ‘phansi kotha’ or the hanging courtyard, along with the gallows, was constructed during early 1950s. The gallows consist of a metal crossbar erected on two concrete pillars on which loops have been made for the hanging rope.
According to them, the metal bar tends to weaken due to weathering. “We are now testing the strength of the bar with the help of experts. Some additional constructions can be carried out to increase the strength and length of the bar,” said a jail official on the condition of anonymity.
Jail sources say that eight ropes prepared by prisoners at Buxar jail, known as Manila ropes, have been procured. In the making of this rope of soft cotton, butter or wax is used to keep it soft and yet strong.
“It is made in such a way that the ropes do not cut through the neck of the convict. While hanging, multiple knots ahead of the noose are greased with butter so that it gradually untangles and presses against the neck of the convict, giving a ‘less painful’ death,” said jail sources.
The Buxar ropes were previously used for the executions of rape and murder convict Dhananjoy Chatterjee at Alipore Jail in Kolkata, Afzal Guru and Ajmal Kasab.
The four men have been shifted to jail number 3 where they have been kept in different cells. Each has been allowed to meet family members at least once in the past fortnight. “We have not noticed any behavioural changes except for occassional bouts of anxiety among the convicts. They have been meeting their lawyer regularly regarding the status of their case,” said a jail officer.
2019: No hangman in MP
No hangman in MP to execute death sentence, February 5, 2019: The Times of India
Soon after the Satna district court ordered death sentence to the teacher who brutally raped a four-year-old and scheduled his execution for March 2, the Jabalpur Central Jail is looking for a hangman to carry out the execution. There are none in the state, as well.
It is not clear as to who would hang him at the gallows in Jabalpur Central Jail at 5.00 am on March 2 as mandated by the court. Though death penalty, particularly in cases of child rape or child rape/ murder cases is becoming commonplace in Madhya Pradesh following a new law enacted in April 2018 providing for capital punishment for rape of a minor less than 12 years of age, there is no hangman in the state to carry out the capital punishment at Jabalpur Central Jail, the only jail in the state where execution can take place.
Trial courts in the year 2018 sent 21 convicts of sexual assault and murder cases to the gallows. There is a drastic change in the scenario in the state where the last execution took place at Jabalpur Central Jail in 1996.
At that time, too a hangman was brought from Uttar Pradesh to execute the death sentence.
When director general (prisons), Sanjay Chaudhary, was asked whether MP would now recruit hangmen in the wake of more death penalties being handed out to a number of convicts, he said, “There never was a sanctioned post of hangman (Jallad) in the past nor now.”
He further said, anonymous persons, often from other states, are called for execution of death penalty in the state as and when required. “When a convict was awarded death sentence and was to be executed at Indore Central Jail in 1974-75, I remember, the hangman had come from Maharashtra,” he said. Sources at Jabalpur Central Jail, where last execution took, said that on both the occasions, hangmen were called from Uttar Pradesh. “In 1995, a father and son were hanged for murder and in 1996, one Kanta Prasad was executed again for murder. In both the occasions, hangmen had come from UP,” said an official at Jabalpur Central Jail on condition of anonymity.
It was again at the Central Jail, Jabalpur, where arrangements had been made for execution of Maganlal Barela, on August 8, 2013 and again a hangman was called from UP. But Supreme Court had stayed the execution at the last minute after the then Chief Justice of India listened to arguments of Peoples’ Union for Civil Liberties counsel Colin Gonsalves at his residence after mid-night on August 7.
The mentally ill and capital punishment
2019: SC stops execution of mentally ill convicts
Dhananjay Mahapatra, June 2, 2019: The Times of India
India joins nations that don’t execute mentally ill convicts
In a landmark judgment catapulting India into a league of nations that don’t execute the mentally ill, the Supreme Court has barred the execution of a person if he loses his mental balance and cognitive power during post-conviction imprisonment.
Courts across the world, including India, have historically considered mental illness as a mitigating circumstance for imposition of lenient sentences as the offender, because of his mental incapacity, seldom knows the consequences of his action, which becomes a crime. But this is the first time that the SC took note that punishment is a communication from the sentencing system to the criminal about the consequences of his action. When a prisoner loses cognitive power because of post-conviction mental illness, the essence of that communication — consequences of the crime — is lost, it said. This judgment came on a petition seeking review of the SC’s 2008 ruling upholding the death penalty given to a person for sexually assaulting and murdering two minor girls. However, he will be kept in jail till death.
SC: Mental illness can’t be a ruse to escape the noose
The judgment of the bench of Justices N V Ramana, M M Shantanagoudar and Indira Banerjee, said, “The notion of death penalty and the sufferance it brings along causes incapacitation and is idealised to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution because of his disability, the raison d’etre for the execution itself collapses.”
“When such a disability occurs, a person may not be in a position to understand the implications of his actions and the consequences it entails. In this situation, the execution of such a person would lower the majesty of law,” Justice Ramana, writing the judgment for the bench said.
Realising that this ruling could be misused, the SC warned that post-conviction mental illness could not be used as a ruse by condemned prisoners to escape the noose. “This ground needs to be utilised only in extreme cases of mental illness... only extreme cases of convicts being mentally ill are not executed,” the bench said. The bench laid down the test of post-conviction severe mental illness as a ground for non-execution of condemned prisoners.
“The test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of death penalty.,” the SC said.
1991-2015: 15% of hanged since 1991 were Muslims
The Times of India, Aug 11 2015
`Just 4 of 26 hanged since '91 Muslims'
Just four of the 26 persons executed in India since 1991 belonged to the Muslim community , and yet a perception has been created by some media channels in the aftermath of the hanging of Yakub Memon that members of the minority community are being targeted, said government sources. An internal report by the I&B ministry has taken exception to the “tenor of discussion in the four channels -Aaj Tak, ABP News, NDTV India and NDTV 24X7 -and argued it was a “serious threat to national security and had “sown seeds of distrust between communities. The common thread in their reporting was that Supreme Court had been unfair to Memon.
The ministry feels that, at the very least, an explanation should be demanded from these channels.“Repeated examples of the death sentence of Beant Singh being commuted are being cited. Truth is both of them are on death row.Similarly in the Rajiv Gandhi assassination case, it was the Congress government that delayed consideration of the mercy petition that led to SC converting their death sentence to life imprisonment, said a source who had reviewed the report.
The channels have been charged with telecasting content that was denigrating to the President, judiciary , could incite violence and against national security . The ministry has prepared grounds for justifying their action against the channels pointing out that two Hindi channels broadcast wanted gangster Chhota Shakeel's interview without editing out comments that clearly suggested unleashing of communal violence and made disparaging comments on the judiciary.
“The world has seen what you did with Yakub Memon... We don't believe in your judiciary. This was justice based on revenge.You people took revenge from one person... Chhota Shakeel told Aaj Tak.And he told ABP News: “The world has seen how you have executed an innocent man... After Babri Masjid people had taken action and many things had happened. For every action, there is a reaction... there are many people besides us (who can take action). The anchor on NDTV India described the order to hang Memon as “unfortunate and said that the courts only found merit in the prosecution's case while NDTV 24X7 in an interview of lawyer Majeed Memon broadcast remarks against the Indian judicial system. Memon was quoted commenting on the pardon given to accused Usmann Jaan Khan saying, “If you show this pardon to any person outside India, UK authorities or US authorities or the best brains in the world as far as criminal law is concerned, they will laugh at you. They will laugh at you; they'll say is this justice? Usmaan Jaan Khan has played a role in this whole operation 10 times more than Yakub. The ministry has also pointed out that former Congress minister Manish Tewari's claim that no notices were issued under UPA government was incorrect.
2000-15: number of executions
The Times of India, Jul 21 2015
Pradeep Thakur & Himanshi Dhawan
Death penalty cannot be arbitrarily imposed: Expert
Of the over 1,600 convicts awarded the death penalty in the last 15 years, the Supreme Court confirmed the sentence in only 5% of cases while the rest were either acquitted or the sentence commuted to life.
A recent study by the National Law University that has researched death row convicts since 2000 has found that of the 1,617 prisoners sentenced to death by trial courts, the punishment was confirmed in only 71 cases. While 22 convicts were acquitted, in the case of 115, it was commuted to life.No wonder voices against the death penalty are growing.Roger Hood, professor of criminology at Oxford University and a renowned advocate of abolition of death penalty , has told the Law Commission in a consultation that “capital punishment is not an option for India as there were very few convictions, and most were wrong“.
Hood has said India is violating Article 6(1) of International Covenant on Civil and Political Rights (ICCPR), the UN human rights charter, according to which `no death penalty can be arbitrarily imposed'. An opportunity of reformation after long retention must be given to the accused which is one of the rights according to ICCPR, he said. “Failure to provide judicial support may lead to crimes but there is no proof that death penalty helped in deterring crimes,“ Hood said. He was invited by the Law Commission last week for a consultation on capital punishment.Legal experts, social thinkers and politicians were part of the day-long deliberations in the capital on July 11.
Making a strong case for abolition of death penalty , Law Commission chairman Justice A P Shah said about two-thirds of the world has abolished death penalty and “it is time we revisited our stand“. There were six politicians who were part of the consultation process, in cluding Varun Gandhi of BJP, Kanimozhi of DMK Shashi Tharoor and Manish Tewari of Congress, who advocated abolition of death penalty.
Wajahat Habibullah, ex chief of National Commission for Minorities, said he had personal confrontation with terrorism, and still felt that death penalty was not the way to deal with terrorism. “We won the Independence struggle through the principles of `ahimsa', so we must follow it also,“ he said.
Senior advocate Prashant Bhushan blamed the trial courts for arbitrary and irresponsible judgments on death sentences. “Death penalty is a form of retribution and violence by the state. It promotes a lynch mob mentality and is not a significant deterrent for people. There is always a chance that the judicial system might go wrong,“ he said.
Suhas Chakma of the Asian Centre for Human Rights blamed executions by the state as `politically motivated'. “The fact that few sentences have been confirmed by the high courts and even fewer by the Supreme Court in comparison to the number of cases reported in the NCRB, shows that death penalty has no impact and it has no use,“ he said.
2009-13: Judicial executions, state-wise
See graphic: Death sentences, India, state-wise, 2009-13
2011-13, number of executions
The Times of India, Aug 12 2015
Death penalty given to 339 during 2011-13, says Centre
A total of 339 convicts were awarded capital punishment during 2011-13 and five cases of mercy petitions, involving nine convicts, were pending with the President, Lok Sabha was informed.
Minister of state for home Haribhai Parathibhai Chaudhary said as reported by the National Crime Records Bureau, a total of 117, 97 and 125 inmates were awarded capital punishment in 2011, 2012 and 2013 respectively .
“As per available records, there are five cases of mercy petitions, involving nine convicts, pending under Article 72 of the Constitution of India,“ he said replying a written question.
According to the NCRB data, no one was executed in 2011 while one convict each was executed in 2012 and 2013.
2000-15: Rich-poor divide
The Times of India, Jul 21 2015
Pradeep Thakur & Himanshi Dhawan
Here's proof that poor get gallows, rich mostly escape
Disadvantaged often can't pay for good lawyers
The fact that our legal system is skewed against the poor and marginalized is well known. And to that extent, it's only expected that they get harsher punishment than the rich. But here are figures that tell the full story.
A first of its kind study , which has analysed data from interviews with 373 death row convicts over a 15-year period, has found three-fourths of those given the death penalty belonged to backward classes and religious minorities; an equal proportion were from economically weaker sections. The reason why the poor, Dalits and those from the backward castes get a rougher treatment from our courts is more often than not their inability to find a com petent lawyer to contest their conviction. As many as 93.5% of those sentenced to death for terror offences are Dalits or religious minorities.
The findings are part of a study conducted by National Law University students with the help of Law Commission that is engaged in a wider consultation with different stakeholders on the issue of death penalty and whether it should be abolished. Law panel chairman Justice A P Shah, himself a strong proponent of abo lition of death penalty , is to submit a final report to the Supreme Court by next month.
Senior advocate Prashant Bhushan said: “It is true that there is a class bias, otherwise why would we have so many people languishing in jail because they cannot afford a lawyer to get bail?“ He said only 1% of the people can afford a competent lawyer. Afzal Guru hardly had any legal representation at the trial court stage, he added.
Founder of Human Rights Law Network and senior advocate Colin Gonsalves says, “I think the finding that 75% of the death row convicts are poor is the absolute minimum. The rich mostly get away while the very poor, especially Dalits and tribals, get the short shrift.“
The NLU students have interviewed all the death sentence convicts and have documented their socio-economic background. The psychological torture these prisoners face before they are hanged are some of the observations in the study . Prisoners on death row are not allowed to attend court proceedings most of the time.
July 2013-January 2015, number of executions
The Times of India, May 07 2016
CAPITAL PUNISHMENT is ethically complicated for any society. Even those who believe that it is necessary tend to turn their eyes away from it. The Death Penalty Research Project, undertaken by the National Law University, Delhi, is the first attempt to understand exactly how this grim sentence works. The researchers studied 373 out of 385 death row prisoners between July 2013 and January 2015 to understand their backgrounds, the realities of the legal process, and what it is like to live in prison, haunted by death
DYING BY SLOW DEGREES
Waiting for death, from the first trial court sentence to the last appeal, is a unique torture.Since the 1980s, there has been continuous litigation on whether undue delay in the execution of a death sentence is grounds for commuting it. Those who file mercy petitions are caught in a pincer between hope and fear , not knowing what tomorrow will bring.
Gopichand Ravidas, Govardhan Ravidas, Mahant and Yudhisthir are suspended in time. Convicted for a caste massacre that killed 35 upper-caste people, they have spent more than 20 years in prison. Nine years after their arrest, they were sentenced to death under the Terrorist and Disruptive Activities (Prevention) Act (TADA). The Supreme Court heard their appeal a year after their conviction, but was split on the question of punishment. The death sentence was upheld. Having submitted their mercy petition in 2003, the four men have not heard back on a decision. They prefer to “die now than suffer the distress of living on death row“.
Gopichand's wife, Lalita Devi, lives in the hope that he will return, and she says that time has not dulled her pain. Their families live in poverty as wage labourers. Gopichand has never been released on bail, parole or furlough, and has rarely met his wife or children over the last two decades.
WHY THE DEATH PENALTY IS THE `PRIVILEGE OF THE POOR'
Almost three-fourths of the pris oners sentenced to death were economically vulnerable. A staggering 61.6 per cent of them had not completed secondary school. Lower castes and religious minorities made up 76 percent of the death row prisoners studied. While the study makes no claims of direct discrimination, structural disadvantage meets the flaws of the criminal justice system in deadly ways. Families are left reeling, with their main provider in prison.
Ranjay, an autorickshaw-driver, was convicted and sentenced to death for shooting a one-year-old child. The case against him says that he had demanded Rs 100 from the child's grandfather., then drunkenly fired his pistol, killing the child. His wife Shivmani has a different story . Ranjay fired at a wall, but the bullet ricocheted and hit the baby . The grandfather then assaulted him, stabbing him in the neck with a pair of scissors. Ranjay wanted to drive the child to hospital in his auto. But a crowd had taken over, attacking him and his family. Finally, Shivmani dragged him to the police, to save him from the mob. The police has not recorded that Ranjay came in with multiple wounds, or that his wife brought him to the station.
Shivmani is 36, and has been married for 15 years. She has never been to school. She has two daughters and three sons. They had built a house, but had to sell it to meet legal expenses. Shivmani worked as a cook, but recently lost her job. With no support from anywhere, she worries about saving her children from a life of crime. Her eldest daughter, who had been her anchor, has run away from home. “Though it is the convict who is sentenced to death, it is his family that dies every day ,“ she says.
Prayag was sentenced to death for a sexual violence case that got tremendous media attention. The public outrage at the crime, though, ended up devastating his family. His parents, Bhuvan and Jaya, worked as a municipal corporation cleaner and domestic worker, respectively. But as soon as Prayag was arrested, they were evicted from their building. Under threat from the housing society , they left their possessions behind, unaware that they would not be able to return.
Bhuvan and Jaya were reduced to living on the pavement outside the prison. Bhuvan had to give up his job, because of a painful swelling in his foot, and Jaya's income of Rs 1,100 a month can barely sustain them. They bathe in public toilets, and take refuge at a nearby hospital during the rains. They are still struggling to make sense of the way their world has been wrecked.
HOW DEATH ROW PRISONERS ARE LET DOWN BY THE LAW
When the quality of investigation and legal representation are flawed at the very foundation, the death penalty calls up even more un settling questions.
Out of the 220 prisoners in the study who spoke about the tampering of evidence, 142 believed that it was staged. Out of these, 106 were subjected to custodial torture,. “I always remember what a police constable told me about the IPC. The IPC is like a spider's web -big creatures burst through it and only -the small ones get caught. But he forgot to add that the spider never gets caught in its own web,“ says Hilbert, whose shirt was soaked in blood by the police, and shown to have been recovered by them.
Through the interviews, a recurring narrative emerged, of being forced to sign blank sheets of paper, which are then used for a statement. The accused are led to “reveal“ facts the police is already aware of. Stock witnesses are arranged. These are then presented as evidence by the prosecution.
A contingent of policemen in plainclothes came to arrest 30-year-old Juzer for a terror offence. They surrounded the neighbourhood, and questioned his father. After telling him that Juzer was only going to be questioned, and assuring him of no arrest, they were led to his in laws' home, where Juzer was living with his pregnant wife.Still in civilian clothes, the police took him into custody . Though Juzer's father offered information about the terror suspect, because he had been his madrassa teacher, the police refused to listen, saying his son would be back in a couple of hours.
At the police station, two Muslim officers asked Juzer to be candid with them, and that they would look out for him. But the next morning, a police officer came into the interrogation room, and told him he was now done for, that he was caught in a trap, and would have to confess involvement in the terror attack. That's when Juzer understood why he had been arrested. He was 43 at the time of the interview in prison.
Legal assistance is shoddy. Out of the 191 prisoners who spoke about it, 185 said that no lawyer had been available during interrogation. At the time of being presented before the magistrate, 169 out of 189 did not have a lawyer . Of the 20 who did , only three were legal aid lawyers. Prisoners spoke of legal aid lawyers demanding money, and conniving with the other side.Contrary to perception, 70.6% of the prisoners had private lawyers. Even poor families sold their assets to hire them.
But the lawyers had a perfunctory connection with them, at most. At the high court level, 68.4% of the prisoners had never met their lawyers. Of the cases in the Supreme Court, 44.1% of the prisoners did not even know the names of the lawyers representing them. This non-interactioncompromises the quality of defence, restricting it to the technical nature of the crime rather than its context. It also alienates the accused from the judicial process.The families are left in the dark. Chetak was sentenced to death for murdering five people, in the home where he was a domestic worker. He was verbally abused, and paid a meagre salary of Rs 1,500 a month, which was often held back to make sure he kept working. Meanwhile, his mother Narmada, who subsisted on food she got in exchange for small chores, could not afford to visit him.In the 11 years he has been in jail, she has come once, accompanying neighbours who had come to town. Chetak could not work or earn in prison. His legal aid lawyer told him he would only fight the case properly if he was paid. He also dismissed Chetak's questions about the court proceedings, saying it was beyond his comprehension. Chetak is convinced that his case would have gone differently if he had been able to afford better representation.After confirmation of his death sentence by the Supreme Court, he had no knowledge about further legal recourse. After fellow inmates told him, he sent mercy petitions to the president through the prison. He got no legal assistance, or even copies of the petition. Three years later, he learnt from a local Hindi newspaper that his petition had been rejected. He felt utterly alone throughout this complex process, he said, with “no one to listen to his voice or look out for him“
A SENTENCE WITHOUT COMPASSION
EEach of us is more than the worst thing we have ever done.
The Supreme Court's Bachan Singh judgment clarified that the taking of life is not an easy decision, that all mitigating circumstances must be considered before delivering a death sentence.
And yet, sentencing practices are lax. Defence lawyers often presented a cursory case, and judges did not rigorously apply the “rarest of the rare“ framework. They sought no information on the prisoner's circumstances -the psychological, physiological, economic and social factors that affected the individual before court.
In the US, by comparison, a whole range of such factors is explored, with social workers assisting defence lawyers. Abandonment and neglect, early sexualisation, substance abuse by parents, violence in childhood, suicidal and self-destructive tendencies are all considered. These are not marshalled to justify the crime, but to show how the accused is a sum of all many influences, and cannot be reduced to the crime alone. In India, the possibility of reformation is not fully considered, accounts of conduct in prison are rarely sought.
Navinder wakes up at 4 am and works through the day in the prison workshop, making soap and durries, gardening in the vegetable patch. He has spent 25 years in prison, sentenced to death for the murder of 13 people. His sentence was upheld by the high court and Supreme Court, his mercy petition rejected by the president after seven years. The Supreme Court finally commuted his sentence to life, on account of the inordinate delay by the executive.
Navinder was isolated from other prisoners for the first two years of prison. Later, because of his good behaviour, he was moved out of solitary confinement and allowed to involve himself in various activities.Navinder's interaction was restricted to his fellow inmates and family, but he saw that female visitors who travelled long distances to meet inmates did not have toilets to use, and led an initiative to build one. And yet, none of the three levels of the judiciary considered the possibility of reformation, before confirming the death sentence
THE CRUELTY OF CONFINEMENT
Prison conditions can be dehu manising for anyone, but they are harrowing for those facing death. Light bulbs in cells being kept on all night, sleep deprivation and squalor are common experiences. Despite legal provisions, death row prisoners are often denied basic medical attention. Those sentenced to death are not permitted to work and earn, which they often want to do, to buy essentials or just for mental respite.The presence of gallows in many prisons is a constant reminder of the death sentence -in many cases, prison officials morbidly show them to the prisoners, to traumatise them.
Jayakanthan can't stop blinking for a while. He is not used to much light, having been in solitary confinement since September 2013. He is allowed out only for 20 minutes a day .He has no human contact, except an occasional conversation with the guard outside. He has made friends with the lizards, and thinks that they are thanking him for feeding them.They visit his cell and make friendly sounds, he thinks.
Jayakanthan accepts solitary confinement as punishment for having attempted escape twice. That's because his wife and two daughters (one in college, the other in Class 8), had been rendered greatly vulnerable since his incarceration. His lawyer, a distant relative, had been sexually harassing Jayakanthan's wife, and he feared for his daughters. He had tried to escape, he explained, so that the police presence around his house would protect his family from his own lawyer
Death sentences by lower courts hit 20-yr high in 2018, February 7, 2019: The Times of India
While Trial Courts Appear Eager To Hand Down Capital Punishment, Appellate Courts Are Increasingly Sceptical
The death penalty is often demanded in the aftermath of crimes that jolt the public, like the Kathua and Unnao rape cases last year. The prime minister himself claimed in his Independence Day speech that the speed at which capital punishment is awarded to rapists had shot up.
Data shows that lower courts have indeed been liberal with capital punishment. In 2018, trial courts gave 162 death sentences — the highest in nearly two decades, according to ‘The Death Penalty in India: Annual Statistics 2018’, which has been released by Project 39A at National Law University, Delhi. The Supreme Court, though, commuted 11 of the 12 death sentence cases before it, signalling concern with the lower courts’ administration of the penalty.
Of the states, Madhya Pradesh handed out the most death sentences at 22, up from 6 in 2017. The dramatic bump is due to the 2018 amendments to the Indian Penal Code (IPC), which introduced death penalty for child rape. The state also has a points system to reward prosecutors who enable quick convictions.
By law, courts are meant to consider aspects beyond the nature of the crime while imposing the death penalty. A person’s social and economic circumstances, past history, age, time spent in prison and the likelihood of reformation are factors integral to sentencing, as outlined by Supreme Court. But, in fact, “all levels of the judiciary have struggled to apply these principles in a uniform manner,” says Maitreyi Misra of the Centre on the Death Penalty, National Law University, Delhi.
The Death Penalty India Report, 2016, found that between 2000 and 2015, less than 5% of death sentences were eventually upheld by the SC.
In 2018, high courts commuted 55 death sentences, of which 24 were cases involving sexual offences. Interestingly, out of the nine death sentences imposed by trial courts under the 2018 law, six were commuted by the respective high courts. SC commuted 11 death sentences, and Justice Kurian Joseph wrote a dissenting opinion calling for the abolition of the punishment.
But even the Supreme Court’s record is inconsistent, as laid out in the report, ‘Lethal Lottery: The Death Penalty in India’, which analyses 50 years of jurisprudence on the issue.
Clearly, the judiciary is torn on the issue — while trial courts are eager to impose the sentence, appellate courts are increasingly sceptical. “This incoherence has been particularly glaring this year,” says Ruchi Chaudhury, an associate at the Centre on the Death Penalty. Clearly, the legislature’s faith in the effectiveness of the death penalty is at odds with the realities of the criminal justice system.
By law, courts are meant to weigh aspects beyond the nature of the crime while imposing the death penalty. But all levels of the judiciary have struggled to apply the principle uniformly
Himanshi Dhawan, January 30, 2023: The Times of India
NEW DELHI: Trial courts in the country sentenced 165 people to death in 2022, the highest in a year in the last two decades. This is up from 146 prisoners who were sent to death row in 2021. In almost a third of the capital punishment cases, the offender had committed a sexual crime.
At the end of 2022, 539 were on death row, the highest since 2016. The population has steadily increased over the years – up 40% in 2022 from 2015. This is attributed to the large number of death penalties handed down by trial courts and the accompanying low rate of disposal of such cases by appellate courts.
These conclusions are part of the ‘Death Penalty in India: Annual Statistics 2022’ published by Project 39A at NLU, Delhi. The death sentence given to 38 people in February 2022 by an Ahmedabad court in the 2008 serial blasts case contributed to the sharp rise in the number in 2022. In 2016, death penalty for sexual offences was given in 27, or 17.6%, of the 153 cases. This number shot up to 52, or 31.5%, out of 165 cases in 2022.
Anup Surendranath, law professor and executive director of Project 39A, says the increased numbers also reflect the growing trend in trial courts. “Trial courts have resumed imposing a high number of death sentences since the dip in 2020 due to the pandemic (which was the lowest at 77),” he said.
This, Surendranath said, is in stark contrast to the Supreme Court's efforts to highlight the serious problems with the manner in which death penalty sentencing is being carried out. In May last year, the SC held that it was the duty of the trial courts to proactively elicit materials on mitigating circumstances while sentencing in death penalty cases, and issued guidelines for the collection of such information.
Surendranath said, “The Supreme Court acknowledged the necessity for reform and identified a set of crucial questions for determination by a five-judge constitution bench. The ever-widening gap between SC guidance and the trial courts' blatant disregard for procedural guarantees has been repeatedly established in research by Project 39A.”
Another issue of concern is the increasing number of prisoners on death row. The number has increased from 400 in December 2016 to 539 as of December 2022. The highest number of death row prisoners are in UP (100), followed by Gujarat (61) and Jharkhand (46).
“Appellate courts continue to commute or acquit a majority of the death penalty cases considered by them. But they are disposed of too slowly to match the volume of death sentences coming from trial courts. This results in the death row population increasing each year. All of this highlights the crisis in India's death penalty regime and forces us to ask the question whether it is a punishment that can ever be administered in a constitutionally acceptable manner,” Surendranath said.
Religion, caste, education, income and death sentences
Death sentences reflect the population composition
Indpaedia’s analysis of the same numbers as above shows that it is wrong to give a caste colour to death sentences.
The total number of persons on death row was 381.
Of this number, SC/STs were 23.62 per cent, which is slightly lower than the SC/ST share of India’s population.
No one knows what the ‘general’ and OBC share of India’s population is.
In 2011, 14.2 per cent of Indians were Muslim, 2.3 per cent Christian and 1.7 per cent Sikh. This adds up to 18.2 per cent. The Buddhists (0.7 per cent), Jains (0.4 per cent) and ‘others’ (0.9 per cent) take the total of the minorities to 20.2 per cent.
However, ‘generals’ sentenced to death were 23.09 per cent, which could be around the same as the ‘general category’s’ share of India’s population or higher. (The general category, in this case, is the Hindu ‘upper’ castes.)
19.94 per cent of the convicts were from the religious minorities. This is lower than their share of the population.
33.33 per cent of those sentenced were from the OBC.
What can be said with certainty is that as far as the SC/STs and minorities are concerned their share of death sentences is lower than their share of the population.
Death Penalty Project: NLU, Delhi
The Times of India, May 07 2016
1 in every 3 persons sentenced to death is eventually acquitted: Study
Out of every 100 death sentences that trial co urts pronounce, less than five are upheld by higher courts. About 30% of the remaining prisoners are acquitted, and the sentence is commuted for the rest.
What happens to all the people trapped in the maws of criminal justice system, condemned to death? No ministry or agency has a record of how many people India has executed since Independence. Data is scarce, and the stories are unheard.
The Death Penalty Project, launched by the National Law University , Delhi, is the first to look closely at life under the death sentence. Between July 2013 and January 2015, it compiled official data and interviewed hundreds of death row prisoners and their families.
“The narratives we heard were extremely unsettling,“ says Anup Surendranath, constitutional law professor at NLUD who headed the project.
“I feel like I am caught between two blades of a scissor, with no means to escape,“ says Harikrishnan, one of the death row prisoners interviewed.
The project looks at the vagaries of the criminal justice system, the state of prisons and the brutalising of the police as an institution where torture of prisoners and threats against families are routine to draw out confessions.
But what stands out is how the long wait to hear whether they will live or die can devastate prisoners. This uncertainty, says Surendranath, “is unmatched in any other form of incarceration“.
2021: First hanging of a woman after Independence
Anuja Jaiswal, Ishita Mishra and Sandeep Rai, February 18, 2021: The Times of India
Preparations begin to hang a woman for 1st time post-1947
The Mathura district jail has started preparations to hang a woman for the first time in independent India, report Anuja Jaiswal, Ishita Mishra and Sandeep Rai.
Shabnam Ali, 38, was convicted of killing seven members of her family — her mother, father, two brothers, sister-in-law, cousin and 10-month-old nephew — by serving them milk laced with sedatives and then slitting their throats.
Shabnam, 25 then with a double MA, wanted to marry Saleem, a class VI dropout, but her family did not want her to. Both were sentenced to death in 2010 by the sessions court in Amroha in UP, where they are from.
‘Haven’t got death warrant, but started preparing’
Over the next 11 years, Shabnam went to the Allahabad HC, the Supreme Court, the President and then the SC again. In January last year, her review petition was dismissed by the SC. However, she has not exhausted all judicial remedies. Though her lawyer told TOI that they have not been informed about a death warrant being issued in the one year since, at the Mathura district jail, the only one in the country where women can be hanged, preparations are afoot.
“We have not received any death warrant but have started preparing… Last year in February, the executioner, Pawan Jallad, had inspected the hanging house and said that there was a problem with the structure of the gallows. We are fixing that now. We have also just ordered two hanging ropes from Bihar’s Buxar jail,” Mathura senior jail superintendent Shailendra Maitrey told TOI.