July 18
SUDAN:
Supposed murder victims turn up alive in South Sudan
2 refugees have identified themselves in Maban County of South Sudan as men
whom Sudanese prosecutors said were murdered.
During the trial of an alleged SPLM-N rebel supporter in Sudan, Min Allah
Husain, prosecutors said that he killed 2 men called Sard Wed El Jamel and
Mohamed Englizi.
Min Allah earlier this month was sentenced to death by a court in Sennar.
But the 2 refugees denied that Min Allah was a murderer, saying they are still
alive and currently living in refugee camps in Maban County in South Sudan's
Upper Nile state.
Speaking to Radio Tamazuj from one of the camps, the 2 men said they hadn't
been killed by Min Allah Hussein who is still behind bars in Kober Prison
waiting for the execution of the death penalty.
Mohammed Englizi explained that they have a blood relationship with the
accused, saying he does not have any problem him at all.
For his part, Sard Wad El Jamel confirmed that he is living in Jendrasa camp,
saying he had not been killed by the convict.
"I assure you that nobody from my relatives went to open to the authorities to
open a case on the matter against Min Allah," he explained.
The 2 men on the victims list called on the Sudanese security operatives and
the judiciary to release Min Allah immediately.
Another 4 persons whom prosecutors said Min Allah had killed reportedly
actually attended the trial to prove that they are still alive and none of them
was killed.
(source: radiotamazuj.org)
SINGAPORE----executions
Singapore hangs 2 drug traffickers, first executions in over 3 years
Singapore hanged 2 men convicted of drug trafficking on Friday, the 1st
executions carried out in the city-state for more than 3 years while the
country reviewed its use of the death penalty.
Tang Hai Liang, 36, and Foong Chee Peng, 48, both from Singapore, were executed
at Changi Prison according to the Central Narcotics Bureau (CNB), having been
convicted of trafficking heroin.
Singapore put a halt to all executions in July 2011 while it reviewed its use
of the mandatory death penalty and now allows judges to have more discretion in
certain cases.
Last November, it lifted the death penalty on a convicted drug trafficker for
the 1st time.
When the review took place, all people on death row were allowed to ask to be
considered for re-sentencing, though the CNB said Tang and Foong both said they
did not want to be considered.
"Tang Hai Liang and Foong Chee Peng had been accorded full due process," the
CNB said.
The Singapore Working Group on the Death Penalty, a group of non-governmental
organisations, said they believed the executions should not have taken place
given another drug offender is making a constitutional challenge against the
anti-drug laws.
"It was deeply unjust to have executed them before the constitutional challenge
was decided," they said in a statement.
"The executions are a regrettable step backwards for Singapore," they added.
Singapore has some of the toughest anti-drugs laws in the world, and its
customs forms warn arriving travellers of "death for drug traffickers" in no
uncertain terms.
It has hanged hundreds of people - including dozens of foreigners - for
narcotics offenses in the last 2 decades, Amnesty International and other
groups say.
(source: Reuters)
*************************
Convicts executed despite constitutional challenge in the courts
On Friday, 18 July 2014, the Singapore Government carried out the execution of
2 convicts at the Changi Prisons Complex.
The Central Narcotics Bureau (CNB) confirmed the hanging today.
The executions were carried out despite The Singapore Working Group on the
Death Penalty, a coalition of non-governmental groups, having written to the
President to grant a stay of execution, pending the outcome of a constitutional
challenge currently before the courts with regards to the Misuse of Drugs Act.
The group says it is "deeply unjust" to have the two men executed before the
constitutional challenge was decided.
Here is the statement by the Working group on the executions:
The Singapore Working Group on the Death Penalty deeply regrets, and is gravely
disappointed at the executions of 2 individuals that took place today, 18th of
July 2014. Inmates Foong Chee Peng, 48, and Tang Hai Liang, 36, were hanged at
dawn this morning. Both men were convicted of drug trafficking.
These 2 executions bring to an end the moratorium that has been in place since
July 2011, when the government commenced an internal review of the mandatory
death penalty laws. This review took place without any public consultation nor
has it been made available for public scrutiny. Subsequently, the changes were
passed by Parliament in the exact form proposed by the government in July 2012,
despite various warnings about their potential problems.
We also wish to highlight that there is an ongoing application filed by another
drug offender before the Supreme Court, challenging the validity of section 33B
of the Misuse of Drugs Act because it violates Article 12 of our Constitution.
The hearing is fixed before the Court of Appeal on the 18th of August later
this year.
Given the fact that the constitutional challenge to the amendments could have a
potential bearing on the lawfulness of Foong and Tang's executions, it was
deeply unjust to have executed them before the constitutional challenge was
decided.
The injustice is compounded by the fact that we had written to the President
and the Minister of Home Affairs yesterday to highlight this situation and
urged for an urgent stay of execution until our courts have decided on this
constitutional challenge at the very least.
Finally, the executions are a regrettable step backwards for Singapore. The
death penalty has not been proven to be a more useful deterrent against crime
than alternative forms of punishment. Moreover, once carried out, miscarriages
of justice cannot be remedied.
We therefore reiterate our calls for the government to impose a moratorium on
all executions and move towards the abolition of capital punishment in
Singapore.
We believe in Second Chances
Singapore Anti Death Penalty Campaign
Think Center Singapore
---------
Below is an email sent by the Singapore Working Group on the Death Penalty to
the President at 8.30 pm, Thursday, 17th of July 2014, urging the President to
exercise his powers to stay the executions of the death row inmates:
Your Excellency,
We are a coalition of local non-governmental organizations that work closely
with the families of death row inmates and advocate against capital punishment
in Singapore.
We have been just informed from various sources that there are 2 death row
inmates condemned to death arising from drug trafficking who will be executed
tomorrow morning at 6am. We wish to highlight to your excellency that there is
an application before the court (criminal motion 40/2014) that seeks to
challenge the validity of section 33B of the Misuse of Drugs Act - that it
violates Article 12 of the Constitution. The hearing is fixed before the Court
of Appeal on 18th August at 10am.
In light of the above constitutional challenge which will have a bearing on the
lawfulness of the impending executions tomorrow, we strongly urge your
excellency to stay their executions pending the outcome of the above
application, failing which the 2 executions scheduled will be deemed unlawful.
We would appreciate if you could respond to us, concerned citizens, on an
urgent basis as we wait with anxiety for your confirmation that you will stay
the execution.
Yours Sincerely,
1)We believe in second chances
2)Singapore Anti Death Penalty
3)Think Center
(source: The Online Citizen)
JAPAN:
Tanigaki vows internship revamp, foreign-friendly policies
Addressing the foreign press, Justice Minister Sadakazu Tanigaki on Thursday
reaffirmed his commitment to revamping the foreign trainee program, which
critics say is rife with human rights violations.
Speaking at the Foreign Correspondents' Club of Japan, Tanigaki trumpeted a
range of initiatives Japan is undertaking to turn itself into a less
discriminatory country, including one to lure more "highly skilled foreign
professionals" to the world's 3rd-largest economy and an overhaul of the
so-called technical internship program.
Tanigaki said the Justice Ministry began reviewing proposals submitted by a
private panel of outside experts last month, including suggestions to stiffen
penalties for any employers found to be mistreating interns, such as by
underpaying or abusing them.
Another proposal suggested allowing rule-abiding, conscientious employers to
bring in larger volumes of trainees and having them stay longer.
"I'd like to assure you that the Justice Ministry will work with other related
ministries as closely as possible to overhaul the system swiftly," Tanigaki
said.
He also emphasized that a bill that cleared the Diet in June will allow
foreigners certified as "highly skilled professionals" to qualify for permanent
residency after just 3 years.
"We'd like to encourage more foreigners to study and work in Japan because we
believe that the contributions of those people from abroad will greatly help
invigorate Japan's economy," he said.
But while Tanigaki pledged to roll out the red carpet for non-Japanese, the
recent rise in hate speech directed at ethnic Korean residents has cast doubt
on the nation's ability to make them feel welcome.
Tanigaki said that such incidents are "very embarrassing," and described the
phenomenon as a sign that Japanese are becoming less confident in themselves.
The Osaka High Court handed down a verdict earlier this month in which it
ordered a right-wing organization that repeatedly vilified Korean
schoolchildren in Kyoto from 2009 to 2010 to pay 12 million yen in damages, and
denounced its hateful rallies as "vulgar."
Japan has no law that specifically bans racial discrimination or hate speech.
Tanigaki, who is a Kyoto native, said he would carefully consider the ruling in
deciding whether Japan should attempt to outlaw racist speech.
As for the death penalty, he reiterated that the government doesn't intend to
review the system anytime soon because of its solid public support. But he said
he is aware the global trend is shifting toward abolishment.
Asked what crosses his mind each time he signs off on an execution, Tanigaki
said: "It's true what those people did is unforgivable and extremely cruel. But
I've noticed, as I leaf through their records, that those criminals often come
from a very unhappy childhood."
(source: The Japan Times)
NIGERIA:
EU Moves to Abolish Death Penalty in Nigeria
The European Union, EU, yesterday, urged Nigeria to explore other alternatives
to death penalty, saying it had commenced moves to secure the release of 88
inmates sentenced to death by different courts across the federation.
The EU, which made the call at the official release of a report on cases of
death penalty in Nigeria from since 2011 by an international human right body,
Avocats Sans Frontieres France, ASFF, also known as Lawyers Without Borders,
said it had, through the Saving Lives, SALI, project, succeeded in securing
freedom for 35 inmates facing the death penalty.
The Head, Political Governance and Democracy Section of the EU delegation to
Nigeria and to the Economic Community of West African States, ECOWAS, Mr. Alan
Munday, insisted that the death penalty ought to have been abolished in the
country, "especially in view of the imperfect legal system in existence.
"Under the SALI project, the enforcement of certain rights has been brought to
the fore.
"The case of Maimuna Abdulmumini, accused of murder when she was 13 years old
and sentenced to death while nursing an infant emphasises this."
"Her case highlighted the rights of minors under both regional and
international laws and secured a victory through the judgment awarding damages
as given by the ECOWAS Court of Justice."
(source: The Vanguard)
INDIA:
Law Commission Report on 'Death Penalty'----A Chance to Overcome Incoherence in
Indian Jurisprudence?
Vol - XLIX No. 29, July 19, 2014 | Suhrith Parthasarathy----Commentary
Indian jurisprudence is at a place today where we are neither sure of the
deterrent effect of the death penalty nor as to when it ought to be awarded.
Whichever way one wants to look at it, the death penalty serves no reasonable
penological purpose. The only objective that it seems to fulfil is the aberrant
sense of catharsis that it offers to a public baying for blood. Perhaps, the
Law Commission's new report will serve to provide the research for a fresh
constitutional challenge. And perhaps the Supreme Court will, on this occasion,
play its true role as a counter-majoritarian institution.
The penalty of death differs from all other forms of criminal punishment, not
in degree but in kind. It is unique in its total irrevocability. It is unique
in its rejection of rehabilitation of the convict as a basic purpose of
criminal justice. And it is unique, finally, in its absolute renunciation of
all that is embodied in our concept of humanity. - Justice Potter Stewart of
the US Supreme Court in Furman vs Georgia.1
Of all the arguments to be made against the death penalty it is the
punishment's inglorious irrevocability that is most resonant. On 4 May 1996,
Ravji Rao was hanged to death by the state of Rajasthan just over three years
after he had committed the murder of his pregnant wife and 3 children. Rao's
sentence had been confirmed by the Supreme Court of India, only months earlier.
The Court in Ravji alias Ram Chandra vs State of Rajasthan2 had found Rao's
crime so brutal that his economic and social status was, to it, irrelevant in
determining his sentence. "It is the nature and gravity of the crime but not
the criminal", wrote the Court, "which are germane for consideration of
appropriate punishment in a criminal trial." Only, the Court was wrong.
In 2009, in Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra,3 the
Supreme Court declared its judgment in Ravji per incuriam. According to justice
S B Sinha, Ravji was rendered in ignorance of law and binding precedent. The
conclusion in Ravji's case that it is only the characteristic of a crime, to
the complete exclusion of the social and economic status of a criminal, which
ought to be relevant in sentencing a convict, was, according to Sinha, palpably
erroneous. It ran counter, Sinha noted, to the diktats of Bachan Singh vs State
of Punjab,4 which remains the central law governing capital punishment in
India. Here, the Supreme Court had ruled that in fixing the degree of
punishment or making the choice of sentence for various offences... the court
should not confine its consideration 'principally' or merely to the
circumstances connected with the particular crime, but also give due
consideration to the circumstances of the criminal.
The consequences of Ravji were disastrous. At least 15 criminals had been
sentenced to death as a result of the decision, and for 2 of them - Rao and Ram
- the Supreme Court's admission of its own error had come too late.
Since Bariyar, which brought out the inherent flaw in Ravji, the court has
observed in several decisions that the effects of following Ravji had deeply
blemished the court's sentencing policy.5 In Sangeet vs State of Haryana,6 for
example, the court pointed out that even after its declaration that Ravji had
been erroneously decided, it had continued to render irrelevant a criminal's
socio-economic background in determining the sentences of numerous convicts.
For instance, in Mohd Mannan vs State of Bihar,7 the court, in referring merely
to the nature of the crime - which in this case was a brutal rape and murder of
a 7-year-old girl - confirmed the award of the death sentence. "When the crime
is committed in an extremely brutal, grotesque, diabolical, revolting or
dastardly manner so as to arouse intense and extreme indignation of the
community and when collective conscience of the community is petrified", wrote
the court, "one has to lean towards the death sentence".
The penological disaster brewed by Ravji even promoted a group of 14 former
judges of the Supreme Court and various high courts to make an extraordinary
appeal to the President of India.8 In a letter dated 1 July 2012, the group
implored the government to commute the sentences of 13 persons in seven
different cases to life imprisonment. Capital punishment in each of their
cases, the retired judges pointed out, had been awarded based on a
now-admittedly flawed application of the law. "This matter goes to the very
heart of our Constitution and the system of democratic government", they wrote,
"because it involves the taking of lives by the state on the basis of judgments
admitted to be erroneous by the Supreme Court."
The moral confusion wrought in the minds of India's judges by decisions such as
Ravji has since extended to other areas of bureaucratic concern. Recently, the
Supreme Court had to intervene to commute to life imprisonment the sentences of
15 convicts on the death row. In Shatrughan Chauhan vs Union of India9 the
Court ruled that an unreasonable delay in disposing a mercy petition filed by a
person on the death row was tantamount to torture, and was valid ground for
commuting his or her death sentence.10 For instance, in the case of Gurmeet
Singh, one of the petitioners before the Supreme Court, there had been a delay
of more than 7 years in the disposal of his mercy petition by the governor and
the president. As a result, Singh had spent 26 years in custody - more than
double what most convicts sentenced to life imprisonment undergo.
Law Commission Report
It is these decisions - in Chauhan, which shows that the process adopted by the
executive in disposing mercy petitions filed by death row convicts is often
arbitrary and capricious, and Bariyar and Sangeet, which show the vagaries and
uncertainties of India's penology - that have now prompted the Law Commission
of India to review the country's capital punishment laws. There is, the
commission believes, a woeful lack of research on the issue of death penalty in
India in spite of the glaring iniquities highlighted in the Supreme Court's
jurisprudence. In a consultation paper released on 24 May, the Commission
notes,
The state of research on the application of death penalty law by the judiciary
is so inadequate that chances of an informed and rigorous policy analysis on
this issue are seriously impeded. A constitutional challenge if and when taken
up by the Supreme Court or a legislative change in the law will be ill served
in the present environment of lack of study on the issue.
With a view to furthering the analysis on the subject, the commission has
invited views from the general public. Once it receives these views, it will
proceed to study data relating to the death penalty collected from various
trial courts, high courts and the Supreme Court to arrive at its final report.
The commission's work is likely to be of particular importance because a
previous constitutional challenge before the Supreme Court ended in failure. It
is this decision in Bachan Singh vs State of Punjab,11 which serves as bedrock
to the entire gamut of death penalty jurisprudence in India. Here, the validity
of 2 provisions was in question: Section 302 of the Indian Penal Code (IPC)
1860 insofar as it imposed the sentence of death for crimes of murder, and
Section 354(3) of the Code of Criminal Procedure (CrPC) 1973, which in
prescribing the procedure for the award of a death sentence, according to the
petitioners, invested the Court with unguided and untrammelled discretion.12
The challenges in Bachan Singh were made on three primary grounds. First, the
death penalty infracted the six freedoms comprised in Article 19(1) of the
Constitution. Since capital punishment served no clearly identifiable social
purpose, and since its deterrent effects were unproven, at best, it was argued
that it could not represent a reasonable restriction on the right to human
dignity of an individual. Second, it was contended by the petitioners that
capital punishment contravened the right to life and personal liberty
guaranteed by Article 21. Post Maneka Gandhi vs Union of India,13 the procedure
established by law through which the right to life and personal liberty could
be curtailed had to be just, fair and reasonable. In other words, our
Constitution, according to the Supreme Court, guaranteed not merely procedural
but also substantive due process. And the death penalty, the petitioners in
Bachan Singh argued, was opposed to the fundamental tenets of due process -
which required the state to treat each person's life with equal importance.
Third, and finally, it was argued that the vice of arbitrariness permeated the
law of capital punishment in India. In bestowing the court an unhindered
discretion in determining when to grant the ultimate sentence, the law,
according to the petitioners, violated Article 14 and its guarantee of
equality.
The majority of judges in Bachan Singh, however, rejected each of these
submissions.14 Curiously, the Court concluded that penal laws could almost
never infract the rights mentioned in Article 19(1). As Justice Sarkaria wrote,
It cannot, reasonably or rationally, be contended that any of the rights
mentioned in Article 19(1) of the Constitution confers the freedom to commit
murder or, for the matter of that, the freedom to commit any offence
whatsoever. Therefore, penal laws, that is to say, laws which define offences
and prescribe punishment for the commission of offences do not attract the
application of Article 19(1).
Second, the Court held that neither Section 302 of the IPC, which allowed
courts to sentence people to death for committing murder, nor Section 354(3) of
the CrPC, violated Article 21. The Constitution's framers, Sarkaria wrote, were
conscious of the existence of death penalty for murder.15 Therefore, even if
the death penalty violated a person's right to life, it would be justified so
long as the procedure fixing such punishment was just, fair and reasonable, in
accordance with Article 21. Here, the procedure encompassed in Section 354(3),
which required a judge granting a death sentence to record special reasons for
doing so, was, according to the majority in Bachan Singh, in conformity with
the Maneka-principles. The guidelines, wrote Sarkaria, were neither arbitrary
nor unfair, and they required the court to exercise its discretion in a manner
known to law. As a result, neither Section 302 of the IPC nor Section 354(3) of
the CrPC violated the fundamental guarantees of Articles 21 and 14 of the
Constitution.16
However, with a view to guiding the sentencing process, the majority in Bachan
Singh further ruled that in cases of murder, the death penalty ought to be the
exception as opposed to the rule. Capital punishment, according to the Court,
could be inflicted only in the gravest cases of extreme culpability, and in
making the choice of the sentence, in addition to the circumstances of the
offence, due regard must be paid to the circumstances of the offender, also. "A
real and abiding concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality", wrote Sarkaria. "That ought not
to be done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed."17
'Rarest of Rare'
This "rarest of rare" doctrine has since transfused death penalty literature in
India like a brooding omnipresence. But the doctrine's chief proposition - that
the death penalty ought to be awarded sparingly - was diminished by the Supreme
Court only a year after Bachan Singh. In Machhi Singh vs State of Punjab,18 a
3-judge bench of the Court fell into a trap that the majority in Bachan Singh
had been careful to avoid. It sought to define a "rarest of rare" case by
providing concrete examples of different categories of cases where the
community's "collective conscience is so shocked that it will expect the
holders of the judicial power centre to inflict death penalty". Each of these
categories, however, quite opposed to the diktats of Bachan Singh, focused only
on the crime, as opposed to the criminal. These were, respectively, the "manner
of commission of murder", the "motive for commission of murder", the
"anti-social or socially abhorrent nature of the crime", the "magnitude of
crime", and the "personality of victim of murder". In the decades that
followed, therefore, although the courts often paid their homage to Bachan
Singh's central thesis, they nonetheless relied on Machhi Singh to determine
what a rarest of rare case was. Consequently, as opposed to the death sentence
being awarded only in cases where the alternative option was foreclosed by a
supposed inability to reform the offender, capital punishment was considered
the appropriate penalty for murder purely on the basis of the nature and
characteristic of the crime.
The Machhi Singh doctrine, as we have seen through cases such as Ravji, quite
apart from being contrary to Bachan Singh's edicts, has also ingrained in
India's death penalty jurisprudence a confused arbitrariness. In Swami
Shraddananda (2) vs State of Karnataka,19 the Supreme Court, for the 1st time,
recognised the flaws in Macchi Singh's decision. Justice Aftab Alam, writing on
behalf of a 3-judge bench, ruled that the categories framed in Machhi Singh,
while useful, could not be taken as "inflexible, absolute or immutable." A year
later in Bariyar, Justice Sinha highlighted the particular incoherence bred by
Machhi Singh, which had given rise to a state of uncertainty in capital
sentencing law that was clearly in foul of constitutional due process. Yet,
even after Swami Shraddananda (2) and Bariyar, the courts continue to apply
Machhi Singh's conditions as a litmus test, while giving the "rarest of rare"
doctrine a complete go-by.
In 2011, for instance, in Ajitsingh Harnamsingh Gujral vs State of
Maharashtra,20 a 2-judge bench of the Supreme Court confirmed the award of the
death sentence by altogether ignoring the social and economic status of the
criminal. Justice Markandey Katju, who wrote the court's opinion, said, in
conclusion, that burning living persons to death is a horrible act which causes
excruciating pain to the victim, and this could not have been unknown to the
Appellant...In our opinion, a person like the Appellant who instead of doing
his duty of protecting his family kills them in such a cruel and barbaric
manner cannot be reformed or rehabilitated. The balance sheet is heavily
against him and accordingly we uphold the death sentence awarded to him.
Curiously, the court in Ajitsingh's case neither cited Bariyar nor thought it
fit to justify how the offender in the case was incapable of being reformed.
Going by Katju's logic, it is difficult to envisage any rationale for
implementing a reformatory system of criminal justice.
Incoherence Persists
The fundamental incoherence in India's death penalty jurisprudence has now been
further exacerbated by a new series of Supreme Court verdicts. In February
2013, in Gurvail Singh vs State of Punjab,21 a 2-judge bench of the court
supplied a completely new interpretation to Bachan Singh to hold that "to award
death sentence, the aggravating circumstances (crime test) have to be fully
satisfied and there should be no mitigating circumstance (criminal test)
favouring the accused." In other words, unless the crime has been proved to be
particularly reprehensible and dastardly, and unless there is nothing in the
criminal's background to suggest that he is incapable of being reformed, the
death penalty ought not to be awarded. This conclusion in Gurvail Singh has
been seemingly augmented by the Supreme Court through its decision in Shankar
Kisanrao Khade vs State of Maharashtra.22 However, the opinion of the Court,
written by Justice K S Panicker Radhakrishnan, has only confused matters
further. Radhakrishnan writes:
To award death sentence, the 'crime test' has to be fully satisfied, that is
100% and 'criminal test' 0%, that is no Mitigating Circumstance favouring the
accused. If there is any circumstance favouring the accused, like lack of
intention to commit the crime, possibility of reformation, young age of the
accused, not a menace to the society no previous track record, etc, the
'criminal test' may favour the accused to avoid the capital punishment. Even,
if both the tests are satisfied that is the aggravating circumstances to the
fullest extent and no mitigating circumstances favouring the accused, still we
have to apply finally the Rarest of Rare Case test (R-R lest). R-R Test depends
upon the perception of the society that is 'society centric' and not 'Judge
centric' that is, whether the society will approve the awarding of death
sentence to certain types of crimes or not. While applying that test, the Court
has to look into variety of factors like society's abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual assault and
murder of minor girls intellectually challenged, suffering from physical
disability, old and infirm women with those disabilities, etc. Examples are
only illustrative and not exhaustive. Courts award death sentence since
situation demands so, due to constitutional compulsion, reflected by the will
of the people and not the will of the judges.
Justice Radhakrishnan in his topsy-turvy verdict appears to have misread Bachan
Singh's dictum. He seems to hold that the test to determine what constitutes a
rarest of rare case is distinct from one which takes into account the
socio-economic characteristics of the criminal. He first rules that there ought
to be no mitigating circumstance favouring the criminal to award the death
penalty, and then, intriguingly, finds that a so-called "R-R test" ought to
nonetheless be conducted to see whether society"s abhorrence demands the award
of the penalty. Justice Radhakrishnan's conclusion, therefore, contradicts the
fundamental thesis that he seeks to originally endorse.
In any event, in a move that seeks to revert the theory of death penalty in
India to the Machhi Singh doctrine, the Supreme Court has now held, in Mahesh
Dhanaji Shinde vs State of Maharashtra, that the decision in Shankar Kisanrao
Khade treads beyond the mandates of Bachan Singh.23 Where this leaves us is not
only questionable but also perplexing. We are at a place today where we are
neither sure of the deterrent effect of the death penalty nor are we sure of
when it ought to be awarded. Whichever way one wants to look at it, the death
penalty serves no reasonable penological purpose. The only objective that it
seems to fulfil is the aberrant sense of catharsis that it offers to a public
baying for blood. The death penalty, howsoever implemented, can never fulfil
the demands of constitutional due process. Perhaps, the Law Commission???s
report will serve to provide the research for a fresh constitutional challenge.
And perhaps the Supreme Court will, on this occasion, play its true role as a
counter-majoritarian institution.
Notes
1 Furman vs Georgia, 408 US 238 (1972).
2 Ravji alias Ram Chandra vs State of Rajasthan (1996) 2 SCC 275.
3 Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) 6 SCC 498.
4 Bachan Singh vs State of Punjab (1980) 2 SCC 684.
5 See for example: Dilip Tiwari vs State of Maharashtra (2010) 1 SCC 775,
Rajesh Kumar vs State (2011) 13 SCC 706, Sangeet vs State of Haryana (2013) 2
SCC 452; Mohinder vs State of Punjab (2013) 3 SCC 294.
6 Sangeet vs State of Haryana (2013) 2 SCC 452.
7 Mohammad Mannan vs State of Bihar (2011) 5 SCC 317.
8 V Venkatesan, "A Case against the Death Penalty",
http://www.hindu.com/thehindu/thscrip/
print.pl?file=20120907291700400.htm&date= fl2917/&prd=fline& (last visited: 18
June 2014).
9 Shatrughan Chauhan vs Union of India (2014) 3 SCC 1.
10 The dictum in Chauhan was followed by the Supreme Court in V Sriharan vs
Union of India (2014) 4 SCC 242. Here, a 3-judge bench commuted to life
imprisonment the death sentences awarded to 3 individuals who had conspired and
murdered the former Indian Prime Minister Rajiv Gandhi.
11 See: supra note.
12 See: A G Noorani (1982), "Death Penalty and the Constitution", EPW, Vol
XVII, No 36, 4 September.
13 Maneka Gandhi vs Union of India (1978) 1 SCC 248.
14 Justice R S Sarkaria wrote on behalf of himself, Chief Justice Y V
Chandrachud, and Justices N L Untwalia, and A C Gupta. Justice P N Bhagwati
wrote a dissenting opinion.
15 Articles 72 and 161, which respectively empower the President and the
Governor to commute sentences including death sentences, shows that the framers
were quite cognizant of the existence of the death penalty for certain offences
when drafting the Constitution.
16 Justice P N Bhagwati famously dissented from the majority's decision in
Bachan Singh. However, his opinion was rendered nearly 2 years after the
majority's verdict was announced. In his dissent, Bhagwati holds that the death
penalty violates both Articles 14 and 21 of the Constitution.
17 The emphasis here is mine.
18 Machhi Singh vs State of Punjab (1983) 3 SCC 470.
19 Swami Shraddananda (2) vs State of Karnataka (2008) 13 SCC 767,
20 Ajitsingh Harnamsingh Gujral vs State of Maharashtra, AIR 2011 SC 3690.
21 Gurvail Singh vs State of Punjab (2013) 2 SCC 713.
22 Shankar Kisanrao Khade vs State of Maharashtra (2013) 5 SCC 546.
23 See: Mahesh Dhanaji Shinde vs State of Maharashtra 2014 (3) SCALE 96.
(source: Economic & Political Weekly)
***************
Shakti Mills gang rape case: Bombay high court to hear confirmation petition on
Oct 31
A division bench of justices VK Tahilramani and Ajey Gadkari of the Bombay high
court will hear on Oct 31 the confirmation petition on the death sentences
awarded to the 3 convicts - Vijay Jadhav (19), Kasim Bengali (21) and Mohammed
Salim Ansari (28) - in the Shakti Mills gang rape case.
They adjourned the hearing in the case after being informed by public
prosecutors Sandeep Shinde and Poornima Kantharia that the convicts' petition
challenging the invocation of amended section 376(e) on them was to be heard by
another division bench on Oct 28.
Section 376(e) was added after the 3 were convicted in the gang rape case (of a
telephone operator) in July 2013. The amended charge provides for a maximum
sentence of death in the case of repeat offence of rape.
The sessions court had on March 21 sentenced them to life imprisonment for the
crime.
The confirmation petition was filed by the state on April 15. It sought
confirmation of the death sentence awarded to the three who figured in both the
gang rapes that took place in Shakti Mills compound in 2013.
As per the law, a death sentence awarded by a trial court has to be confirmed
by the high court. The convicts have still not filed any appeal against their
death sentence.
On April 4, the sessions court convicted Jadhav, Bengali, Ansari and Siraj Khan
for raping a photojournalist on the deserted premises of the defunct Shakti
Mills in central Mumbai on Aug 22, 2013.
Siraj was awarded life imprisonment; the other 3 were given death penalty under
IPC section 376 (e).
Jadhav, Bengali and Ansari were earlier convicted and sentenced to life
imprisonment by the court for gang raping a telephone operator in the same
premises in July, 2013.
Since it was their 2nd conviction in a gang rape case, the prosecution sought
death penalty for the trio by framing the additional charge of repeat offence
under section 376 (e). This section was introduced in the IPC after the Dec
2012 Delhi gang rape.
The sessions court, while awarding death, had observed that the offence was a
pre-planned one and that the accused had shown no mercy to the victim and had
no remorse afterward.
"Such offences must not be tolerated. If leniency is shown, it will be
misplaced sympathy and travesty of justice," the court had said.
(source: Daily News & Analysis)
GLOBAL:
Report: Iran, Iraq lead a slight global rise in executions despite trend toward
abolition
The number of executions worldwide rose last year despite a general global
trend toward capital punishment abolition, according to a report released
Friday by an Italian anti-death penalty group.
The organization Hands off Cain, based in Rome, said Friday that at least 4,106
people were executed in 2013, up from 3,967 in 2012, due to increases in Iran,
which recorded the highest number of executions in 15 years, and Iraq, which
had the highest number since the 2003 fall of Saddam Hussein.
China remains the world's top executioner, with more than 3,000 executions
carried out last year, about equal to 2012. Still, the report noted that
executions in China have halved since 2007 - largely due to a legal reform
requiring a high court review of death penalty sentences.
Hands off Cain said 12 states were considered to have abolished the death
penalty in 2013 or so far in 2014, either through a moratorium or de facto by
not carrying out an execution in a decade.
Emma Bonino, one of the group's founders and a former Italian foreign minister,
expressed concern about hundreds of death sentences that have been imposed this
year against supporters of deposed Islamist President Mohamed Morsi in Egypt,
though still pending legal appeals.
"The fact that there are hundreds sentenced to death after completely summary
trials does not help," Bonino said by telephone from Rome.
In the United States, the botched execution of Clayton Lockett in Oklahoma last
April has helped galvanize public opinion against capital punishment, Bonino
said.
(source: Associated Press)
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