[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Sept. 28



INDIA:

When It Comes To Terror, Law Commission Flinches At Its Own Findings


The Law Commission's recommendations to abolish death penalty for all offences 
except terror has been much lauded - but the fact is that it has stepped back 
from its own conclusions about judicial arbitrariness

In the global discourse on the gradual abolition of death penalty, the 262nd 
report of the Law Commission of India is going to be an important milestone, as 
it represents one-sixth of humanity. The Commission chief recommendation is 
that the death penalty be abolished in all cases except for terror cases and 
cases of waging war against the State often a concomitant charge in terror 
cases). Though not unequivocal in its rejection of capital punishment, it has 
concluded that the arguments against death penalty, even for terror cases, are 
substantial, and has called for 'a more rational, principled and informed 
debate on the abolition of the death penalty for all crimes.'

This is important since in most debates about death penalty, its popular appeal 
as a befitting punishment for heinous crimes has for long prevailed over any 
reasoned argument against it. So much so that, the opponents of death penalty 
are often accused of sympathising with the perpetrators of horrific crimes 
rather than their victims. The phenomenon of terrorism has further stifled the 
debate, since those who challenge the rationale behind capital punishment can 
easily be labelled as 'traitors' in such cases.

The doctrine of 'rarest of rare', laid down by the Supreme Court as a 
prerequisite in the case of Bachan Singh v. State of Punjab in the year 1980, 
is the decisive factor for arriving at whether or not to award capital 
punishment in a case. The Law Commission, by examining several such cases in 
its report, has completely exposed the lack of a principled approach by the 
Supreme Court when it comes to following its own doctrine.

An astounding revelation such as this - that the maximum punishment has been 
awarded arbitrarily - would have been sufficient for the higher courts in India 
to declare death penalty unconstitutional, since it violates the right to 
equality. The reason it has not happened is because of what may seem a 
technicality - the notion that fundamental rights given to the individual by 
the Constitution is against the state and not the judiciary, and therefore the 
judiciary cannot by definition violate these rights. This is why, despite 
having completely demolished the arguments in favour of death penalty as 
practiced by the courts, the Commission has pinned its hope on the legislature 
and not the judiciary for its abolition.

Terror still the exception Nevertheless, the Commission's report quotes with 
approval the Supreme Court judgements in Shatrughan Chauhan v. Union of India 
(2014), where it said that devising a separate category for terror cases within 
'rarest of rare' cases is flawed. This case relates to the issue of inordinate 
delay in the disposal of mercy petitions by the President of India or the 
Governors of State which are filed by or on behalf of the convicts condemned to 
death after the conclusion of the judicial process.

The Court in this case had commuted the death penalty of several convicts to 
life imprisonment, citing that keeping convicts waiting for an unreasonably 
long period of time on their mercy petitions amounts to infliction of cruelty. 
In the same case, the Supreme Court declared its own earlier judgement, in the 
case of Devendar Pal Singh Bhullar v. (State) NCT of Delhi (2013), bad in law. 
In that case, the court had held that a person sentenced to death under an 
anti-terror law (in this case, TADA) cannot claim that his death sentence 
should be commuted to life imprisonment on the ground of inordinate delay in 
the disposal of his mercy petition.

The Supreme Court in Shatrughan Chauhan observed that 'all death sentences 
imposed are impliedly the most heinous and barbaric and rarest of its kind. The 
legal effect of the extraordinary depravity of the offence exhausts itself when 
court sentences the person to death for that offence.' Given how the Court has 
enunciated this principle, any attempt by the legislature to distinguish terror 
and non-terror offences so as to inflict death penalty is likely to be 
constitutionally vulnerable before a court of law.

Unsound jurisprudence

The Law Commission's recommendation to retain death penalty in terror cases is 
unsound also in terms of jurisprudence. Anti-terror laws reduce the threshold 
for the basis of conviction by making evidences otherwise not admissible under 
the Indian Evidence Act, admissible. For example, confessions made before the 
police-officer not below the rank of Superintendent of Police are admissible 
under most anti-terror laws. Given such exemptions, there's a greater 
probability of innocents being convicted under these laws; all the more reason 
why the law must guard against providing for an irreversible punishment like 
death penalty in such cases.

A useful comparison would be to cases of 'Dowry death' under the Indian Penal 
Code. In such a case, if a woman dies under abnormal circumstances within seven 
years of her marriage, the law allows for the presumption that the woman's 
husband or his relatives may have possibly caused her death in connection with 
a demand for dowry. Here, because this provision lowers the threshold otherwise 
required for proving culpability in a murder case, it also proscribe death 
penalty as the punishment, instead restricting it to not less than seven years 
imprisonment which may extend to life.

Further, even if a law (in this case, anti-terror laws) retains death penalty, 
it cannot make it the only punishment for such offences. It must include 
provision of life imprisonment as an option, without which it would be 
unconstitutional, as the Supreme Court has held in the case of Mithu Singh v. 
State of Punjab (1983).

What this means is that the discretion to decide which case deserves death 
penalty will still vest with the courts. How the courts will then be able to 
evade the lingering charge of judicial indiscretion bordering on arbitrariness 
- a fact the Commission itself arrived at in its report - remains unanswered. 
Such quandaries could have been avoided, if only the Law Commission had found 
the gumption to examine the merits and demerits of death penalty in cases 
related to terrorism as well.

(source: Manwendra Kumar Tiwari is Assistant Professor, Dr. Ram Manohar Lohiya 
National Law University, Lucknow----The Wire)

****************

Wrong to seek death penalty----Death penalty is a primitive, vengeful and 
unjust


After a trial court in Mumbai earlier this month found 12 of the 13 accused 
persons charged for planting bombs in the city???s local trains on July 11, 
2006, the prosecution has sought death penalty for 8 of the 12 convicts. The 
demand for death penalty is reflexively made by the prosecution and by sections 
of the public in most cases of murder, especially when the offences are related 
to terrorism. It is as if the prosecution thinks its efforts are successful 
only when the accused are awarded the ultimate penalty. This wrong notion 
continues even when there are cases of the death penalty being awarded wrongly 
and there is increasing demand and action the world over for its abolition. The 
idea that death penalty is a primitive, vengeful and unjust form of punishment 
and that it has no deterrent value is gaining more acceptance everywhere but 
India is among the last few holdouts where it is legally prescribed, sanctioned 
and practised.

The 7/11 Mumbai serial bomb blasts were among the worst terrorist attacks in 
the country's history. About 200 people were killed and over 1,000 others 
injured in the attack. The case has taken a long time to come to a conclusion, 
but this is not final as the verdict is certain to be appealed in higher 
courts. The case was complex and involved examination of a lot of evidence and 
a large number of witnesses. The investigations were controversial too with 2 
investigating agencies - the Maharashtra Anti-Terrorism Squad and the Mumbai 
crime branch - contradicting each other and charges of custodial torture and 
forced confessions being widely made. But these issues are to be examined again 
in the appeals. The matter of immediate interest now is the quantum of 
punishment and whether the court would accept the demand for death penalty as 
made by the prosecution.

There is no doubt that those who were found to have perpetrated the crime 
should receive stringent punishment. But no stringent punishment should take 
the form of the ultimate punishment of taking the life of the accused, even if 
the crime was the killing of people. Human justice can always go astray and the 
best evidence in many cases has collapsed in course of time. In this case too 
the court acquitted 1 accused who had spent 9 years in jail. The prosecution 
has taken the Law Commission???s support to plead for death penalty. But it is 
wrong to award it in terrorism cases as much as it is wrong in other cases. The 
court will hopefully reject the counsel for the most extreme punishment.

(source: Deccan Herald)