April 4
INDIA:
Nirbhaya case: SC begins hearing on death convicts' plea
Almost 2 years after staying execution of death sentence of 4 convicts in the
December, 2012 Nirbhaya rape and murder case, the Supreme Court on Monday began
final hearing on their appeal challenging their conviction and sentence in the
case.
The convicts -- Vinay Sharma (23), Akshay Thakur (31), Mukesh (29) and Pawan
Gupta (22) -- were awarded the death sentence by a trial court in September
2013 and 6 moths later, the Delhi high court upheld their conviction and
sentence. All the convicts approached the Supreme Court in 2014, which stayed
their execution. A bench of Justices Dipak Misra, V Gopala Gowda and Kurian
Joseph said it would examine all evidences in the case to dispel allegations
made by the convicts that they were not given enough opportunity to defend
themselves in the lower court and HC.
"Our approach would be to hear the case as original trial. We would go through
all evidences in the case and analyse them. We would appreciate evidences as
trial court so that there remains no grievances," the bench said.
The bench said the testimony of Nirbhaya's male friend, who was with her on
that fateful night, was the most crucial evidence in the case. It asked the
counsel for the convicts to first argue on the testimony of her friend who was
the sole eyewitness in the case.
Advocate M L Sharma, appearing for Mukesh and Pawan, told the bench that the
order passed by the trial court and Delhi HC in the case was wrong and the
extreme punishment was meted out to them under media and political pressure. He
contended that the judgement be set aside as there was no "substance or
material piece of evidence" and there were contradictions in the depositions of
the victim and her friend about the offence and the offenders.
Disputing the veracity of the dying declaration of the victim, he contended
that she was not fit enough to record her statement and hence, the statement
made through gestures cannot be relied upon. The hearing remained inconclusive
and would resume on April 8.
The Delhi High Court had on March 13, 2014 upheld their conviction and award of
death penalty by terming the offence as "extremely fiendish" and "unparallelled
in the history of criminal jurisprudence" and had said the "exemplary
punishment" was the need of the hour.
The 23-year-old paramedic was brutally assaulted and gangraped by 6 people in a
moving bus in south Delhi on December 16, 2012 and thrown out of the vehicle
with her male friend. She died in a Singapore hospital on December 29.
Prime accused in the case, Ram Singh, was found dead in Tihar Jail and the
trial against him was abated. The 6th accused, a juvenile, was sentenced to a
maximum of 3 years in a reformation home by the juvenile justice board on
August 31, 2013.
(source: The Times of India)
******************
Is It Time To Do Away With Death Penalty In India?
In 1967, the Law Commission of India had reported: "Having regard, however, to
the conditions in India, to the variety of social upbringing of its
inhabitants, to the disparity in the level of morality and education in the
country, to the vastness of its area, to the diversity of its population and to
the paramount need for maintaining law and order in the country at the present
juncture, India cannot risk the experiment of abolition of capital punishment."
However, due to the recent support in favour of abolishing this punishment from
the Indian legal system and the trend being observed in most of the countries
around the world, the Law Commission of India in 2013 decided to review the
issue once again.
This issue, however, is not a new one. One of the most controversial and
heatedly debated topics during the Constituent Assembly debates was whether or
not the death penalty should be retained in the constitution of Independent
India?
One of the main voices for abolishing the death penalty was the man who is
often referred to as the architect of the Constitution - DR. B. R. Ambedkar.
Ambedkar pointed out the inherent violence that is attached to a punishment
like the death penalty and stated that "people may not follow non-violence in
practice but they certainly adhere to the principle of non-violence as a moral
mandate and thus the state ought to observe it as far as it possibly can,"
implying that a state must practice non-violence if it wants its citizens to
condone violence.
However, Ambedkar's views and suggestions were ignored by the Assembly and the
death penalty was retained as a legal form of punishment in the penal code.
Although the death penalty was retained in the legal system it has not been a
common form of punishment. In Mithu vs. State of Punjab (1983) the Supreme
Court observed that "in the whole of IPC there is only 1 section (Section 303)
where death is described as the only punishment for murder by person under a
sentence for imprisonment for life; and even this lone section has been struck
down by the supreme court as it was found violative of the constitutional
provisions."
There are other sections which describe offences for which the death penalty
exists as an alternative along with other punishments. Under the Indian Penal
Code, crimes that are punishable with a death sentence include treason,
abetment of mutiny, perjury resulting in the conviction and death of an
innocent person, murder, kidnapping for ransom and dacoity with murder.
Following the Nirbhaya case, Parliament changed the law to make a 2nd charge of
rape punishable with the death penalty.
The legal policy framers ensured that the death penalty was not awarded in a
frivolous manner. Section 354 (3) makes it mandatory for the judges to state
the reason for choosing to give this particular punishment when alternatives
are available. In Ambaram vs. State of MP, it was clarified that only a special
reason, i.e., special facts or circumstances present will warrant the passing
of a death sentence. This was also reflected in Dhananjoy Chatterjee vs. State
of West Bengal (1994) in which the courts observed that "the measure of
punishment in a given case must depend on the atrocity of the crime, the
conduct of the criminal and the defenceless and unprotected state of the
victim," thus, ensuring that the courts look at a number of factors before
deciding to award this punishment.
Apart from all these legal provisions stated in the various codes governing
criminal law, even the Supreme Court has tried to further limit the number of
cases in which the death penalty is given by coming up with the 'rarest of the
rare cases' doctrine. Cases like Bachan Singh vs. State of Punjab (1980) make
it very clear that even though the death penalty stated is an alternative
option for punishment, in many cases, the only situation in which it can be
awarded is when it fits into the criteria set by the 'rarest of the rare'
doctrine. The mere fact that the court finds the person guilty of committing a
particular crime cannot be a reason to justify the sentencing of capital
punishment.
All this was done keeping in mind the gravity and irrevocable nature of this
sentence and to ensure that it is given only in cases in which such extreme and
grave loss is suffered that it can justify a punishment this harsh.
Apart from all these there is also an option with the person being sentenced to
death to file for a petition of mercy. Thus any person who believes that his or
her crime wasn't as grave as to attract the maximum punishment can appeal to
the Supreme Court (after the death penalty has been confirmed by the High
Court) and if the petition is rejected by the Supreme Court of India, a plea
for clemency can be sent to the President as well. Section 363 (4) of the
Criminal Procedure Code, protects this right to appeal by making it mandatory
for the court to formally inform the accused about his right to appeal against
the sentence and the time period within which such an appeal can be made. This
ensures that a decision as grave as deciding whether or not the State should
take away a person's life is not decided just be one court but can be reviewed
by other authorities as well.
According to government statistics, only 54 persons have been executed since
Independence. An average of 132 death sentences were handed down each year from
2001 to 2011 by trial courts across the country, according to a National Crime
Records Bureau report. The Supreme Court during the same period, however,
confirmed only 3 to 4 death sentences each year. These numbers reflect the
reluctance of Supreme Court in imposing capital punishment.
Even though the Indian criminal justice system tries to ensure that the death
penalty is not awarded unreasonably or without a proper justification, many
legal experts claim that mistakes while awarding this sentence are not
uncommon. This claim became more popular when in 2012 14 eminent judges
(retired) who had served in various high courts and the Supreme Court wrote a
letter to the President stating that since 1996 nearly 15 erroneous death
sentences had been awarded, out of which 2 had already been carried out.
Another very common response to the pro-death sentence argument - that it
serves as a deterrent against people committing similar crimes - is that the
certainty of punishment and not the severity deters crimes in society. This
argument was furthered strengthened when in 2012 a study conducted in the
United States found that there is no credible evidence that the death penalty
has any deterrent effect on crime.
With the recent global trend towards abolishing the capital punishment gaining
more and more support each day, with the European Union having made "abolition
of death penalty" a prerequisite for membership, and the Amnesty International
recently reporting that 140 countries, more than 2/3 of the world, do not use
the death penalty any more.
In fact, today India has become one of the few countries in which death
sentences continue to be awarded after it expressly refused to sign the
moratorium on executions, prepared by the 65th United Nations General Assembly,
in favour of abolishing the death penalty.
However, the idea of prohibiting this 'maximum punishment' is becoming popular
within the country at a very significant pace. And the support for this is
coming from all quarters of society, including from the judiciary itself. The
recent observation by the Supreme Court, "perhaps the Law Commission of India
can resolve the issue by examining whether death penalty is a deterrent
punishment or is retributive justice or serves an incapitative goal," reflects
the conflict within the judicial systems also.
(source: youthkiawaaz.com)
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