May 11
INDIA:
'Abolish death penalty'
In 1996, Bheru Singh, suspecting his wife of infidelity, killed her and their 5
children. The Supreme Court sentenced him to death. 2 years later, Shaikh Ayub,
found guilty of killing his wife and five children, was given life imprisonment
by the SC.
-- In 2000, Suresh, convicted of sexually assaulting a 1 1/2 year old child
was acquitted by the high court but the SC gave him life imprisonment. 5 years
later, Satish who was convicted of raping and murdering a 6-year-old, was
acquitted by the HC but handed death penalty by SC.
-- In 1975, Harbans Singh, Jeeta Singh and Kashmira Singh were convicted by
the HC for murdering 4 people. Their appeals went to 3 separate SC benches with
3 different orders. While Jeeta Singh was handed a death sentence, Kashmira
Singh's sentence was commuted and in Harbans Singh's case, the court
recommended that the President commute his sentence.
These examples of "inconsistent" orders not just in different levels of court
but by different benches of the apex court have been used by anti-death
campaigners to strengthen their campaign which has received greater attention
following the flurry of mercy petitions cleared by President Pranab Mukherjee
in the last 10 months.
International and Indian NGOs, lawyers and human rights activists on Friday
demanded that India abolish death penalty in keeping with international trends.
2/3 of the world has abolished death penalty.
Amnesty International and People's Union for Civil Liberties (PUCL) analyzed SC
judgments in death penalty cases between 1950-2006 to find that whether an
accused got death as punishment depended on a range of subjective factors from
quality of lawyers to the interest of the state or the personal views of the
judge.
Speaking on the issue, Amnesty India's Shailesh Rai said people's frustration
with the impunity of the criminal justice system led them to believe that death
penalty was a "quick-fix" solution.
Human Rights Law Network director Colin Gonsalves agreed that the justice
system was skewed heavily against the poor and vulnerable sections. "You never
hear of the rich or powerful getting death. Point out a single death sentence
that has been given to a rich or affluent person," he said, adding that death
penalty was only a form of state revenge.
(source: Himanshi Dhawan, The Times of India)
************************
Trauma of awaiting death
First let us get rid of the cobwebs of prejudice. Sure, the murders were wicked
and diabolic. The appellant and his friends showed no mercy to their victims.
Why should any mercy be shown to them? But, gently, we must remind ourselves it
is not Shylock's pound of flesh that is sought, nor a chilling of the human
spirit. It is justice to the killer too and not justice untempered by mercy
that we dispense.
This appears to be an appropriate response to Justice G.S. Singhvi and Justice
Sudhanshu Jyothi Mukhopadhyaya of the Supreme Court while judging the petition
of Professor Devender Pal Singh Bhullar, a death convict. The Bench observed:
"At times, their objective is to annihilate their rivals including their
political opponents. They use bullets, bombs and other weapons of mass killing
for achieving their perverted political and other goals or wage war against the
State. While doing so, they do not show any respect for human lives. Before
killing the victims, they do not think even for a second about the parents,
wives, children and other near and dear ones of the victims. The families of
those killed suffer the agony for their entire life, apart from financial and
other losses. It is paradoxical that the people who do not show any mercy or
compassion for others, plead for mercy and project delay in disposal of the
petition filed under Article 72 or 161 of the Constitution as a ground for
commutation of the sentence of death."
The 1st paragraph was the classic statement of Justice O. Chinnappa Reddy,
former judge of the Supreme Court (1978-1987), in a landmark case of T.N.
Vatheeswaran vs State of Tamil Nadu in 1983, which appears as if he was
answering the questions of the Supreme Court in 2013. It is quite a paradox
that Justice Chinnappa breathed his last (at 91) on April 13, a day after the
Supreme Court delivered judgment in the Bhullar case, as if he disagreed with
the inhuman element of the decision. In the Bhullar case, the conclusion of the
Supreme Court is "that long delay may be one of the grounds for commutation of
the sentence of death into life imprisonment, cannot be invoked in cases where
a person is convicted for offence under TADA or similar statutes. Such cases
stand on an altogether different plane and cannot be compared with murders
committed due to personal animosity or over property and personal disputes. The
seriousness of the crimes committed by the terrorists can be gauged from the
fact that many hundred innocent civilians and men in uniform have lost their
lives".
No Constitutional basis: The judgement did not explain any basis,
constitutional or otherwise, for this new categorisation of terrorist and
non-terrorist criminals for the purposes of commuting death penalty for cruel
delay before execution in the context of rejection of mercy petition by the
President.
Senior advocates Ram Jethmalani, and Tehmton Andhyarujina, who assisted the
court, and K.T.S. Tulsi, senior advocate, relied heavily on the Vatheeswaran
case among others and advocated quashing of rejection of mercy petition on the
ground of inordinate delay of 8 years.
In Bhullar, the Bench rightly mentioned that the prolonged delay in the
execution of a death sentence is unquestionably an important consideration for
determining whether the sentence should be allowed to be executed.
Subsequent benches of the apex court have never rejected Vatheeswaran, but
reiterated the principle of Justice Chinnappa though they disagreed with the
two-year period. But this Bench has thrown the baby out with the bathwater,
rejecting the principle along with the '2 year' term. Pratt and Morgan vs
Jamaica (Communication No. 210/1986 and 225/1987) a seminal case, establishing
that where the execution of a prisoner is to take place more than 5 years after
the sentence of death was passed, there are strong grounds for believing that
the delay would amount to "inhumane or degrading punishment" which would
therefore be unconstitutional. Further, the court gave guidance that appeals in
capital cases should be heard within 12 months and the entire domestic appeals
process should be concluded within 2 years. The bench referred to these cases,
expressed its sadness at the delay, but did not attempt to give any guidance as
found in the Pratt case above.
Unreasonable and doubted: State's burden to prove guilt beyond reasonable
doubt, once a basic tenet of criminal justice, is now under a shadow of doubt.
The glaring contradictions, infirmity in confession, validity of withdrawal of
that confession by accused, thumb print of a professor could not raise a
reasonable doubt in the mind of the court. The 2 judges on the Supreme Court
bench, Justices Arijit Pasayat and B.N. Agrawal, overruled the presiding judge,
Justice M.B. Shah, who is senior to the other judges, in convicting and also
sentencing Bhullar to death. The judges inserted unreasonable doubt into the
rule saying: "Proof beyond reasonable doubt" should be "a guideline, not a
fetish, the procedure is only a handmaiden and not the mistress of the law."
Cancer of delay: Delay is the major cancerous problem of administration and
adjudication in our system. Delay in any other count may be tolerated if it has
nothing to do with life and death. But when a person on death row suffers
solitary confinement, the delay of years is deplorable, and denial of justice
on all counts.
The trauma of waiting for death begins from the moment death penalty is
pronounced. The Supreme Court decided Bhullar's appeal in March 2002. The
review petition was rejected in December 2002. Curative petition filed by
Bhullar was dismissed in March 2003.
After delay of 2 years the Home Ministry recommended the rejection of clemency
in July 2005. In April 2011, the Ministry of Home Affairs recalled the file,
scrutinised it again, and in May 2011 again recommended against granting
clemency to Bhullar. Finally, in June 2011, that is 8 1/2 years after the
clemency petition was filed, Bhullar was informed that his petition had been
rejected.
Prolonged solitary confinement made Professor Bhullar mentally unhealthy, in
support of which several documents were presented. The apex court should have
at least constituted a medical board to collate the expert opinion before
deciding whether a mentally ill person could be hanged.
It is appropriate tribute to Justice Chinnappa to conclude with his statement:
"The dehumanising factor of prolonged delay in the execution of a sentence of
death has the constitutional implication of depriving a person of his life in
an unjust, unfair and unreasonable way as to offend the constitutional
guarantee that no person shall be deprived of his life or personal liberty
except according to procedure established by law."
If the apex court is not, who else will be humane and reasonable?
(source: Madabhushi Sridhar is Professor and Coordinator, Centre for Media Law
& Public Policy, NALSAR University, Hyderabad--Deccan Chronicle)
**************
UK academicians oppose execution of Prof. Devender Pal Singh Bhullar; UCU
writes to Indian High Commission & UK Foreign Secretary
It is learnt that UK academicians have opposed the execution of death penalty
to Professor Devender Pal Singh Bhullar.
Sally Hunt, General Secretary of University and College Union (UCU) has written
a letter to Dr. Bhagwati, High Commission of India and William Hague, Foreign
Secretary, UK.
Sally Hunt writes that on behalf of the 117,000 members of the University and
College Union (UCU) about concerns of Bhullar's case.
The UCU has called upon the Indian government to not execute Devinderpal Singh
Bhullar and to remove him from death row immediately.
(source: Sikhsiyasat.net)
***************
'On what basis did President reject my plea?'
A.G. Perarivalan, convict on death row in the Rajiv Gandhi assassination case,
wants to know the factors the President considered while rejecting his clemency
petition.
He raised this demand during an interaction with officials of the Central
Information Commission (CIC) and the Ministry of Home Affairs (MHA) through
videoconferencing from Vellore central prison on Thursday. Perarivalan wanted
to know the grounds for the rejection of his mercy petition, counsel K.
Surendar told The Hindu on Friday.
Accompanied by a prison official, the convict had a 30-minute interaction with
Information Commissioner Sushma Singh and Joint Secretary (Judicial), MHA, J.L.
Chugh. The MHA contended that the President's decision or the advice given to
the President by the Council of Ministers could not be challenged in court
under the provisions of Article 74 (2) of the Constitution. The Information
Commissioner, however, advised Perarivalan to make a written submission of his
queries, Mr. Surendar said.
Perarivalan said he was not challenging the President's decision. Counsel who
met Perarivalan after the videoconferencing session quoted him as saying that
the officials gave him a patient hearing.
"We will make a written submission to the CIC soon," Mr. Surendar said. "The
outcome of the investigation conducted by the Multidisciplinary Monitoring
Committee into the making of the bomb that killed Rajiv Gandhi is among the
details being sought," Mr. Surendar said.
Perarivalan petitioned the MHA in 2012 asking why the President rejected his
mercy petition. Since there was no response, he sent a telegram to the CIC
stating that his plea should be treated as urgent and heard on priority. The
telegram became necessary in the backdrop of the secret executions of Ajmal
Kasab and Afzal Guru.
The videoconference was scheduled for April 15, but did not take place that day
for technical reasons. Perarivalan is lodged in Vellore central prison along
with Murugan alias Sriharan and Santhan, who are also facing the death penalty
in the case. Their petition challenging the inordinate delay in the President
rejecting their mercy petitions is pending in the Supreme Court.
(source: The Hindu)
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