India is one of the few countries where the eye-for-an-eye brand of justice still exists through a penal system that allows death sentences for certain offences. These include murder, terrorism and repeat offences of large-scale drug trafficking, among other such cases.
The previous UPA government did nothing to abolish the death penalty, hiding behind political compulsions as in many other cases. In fact, in 2007, it voted against a United Nations General Assembly call to end the death penalty.
In India, procedure states that a death penalty can be passed by a high court. If a sessions court passes a death sentence, the high court has to confirm it. The second stage of appeal is before the Supreme Court. After an appeal, the convict can also petition the apex court for a review. Supreme Court rules state that review petitions hearings are in-chamber and not in an open courtroom. According to this, oral arguments were never heard and only written submissions were entertained by the bench concerned since 1966, when the rule had been imposed.
On 2 September, the Supreme Court’s five-judge constitutional bench ruled that a three-judge bench should hear review petitions in an open courtroom. One of the five judges — Justice J Chelameswar — dissented. The other judges in the bench are Chief Justice of India Justice RM Lodha, Justice Jagdish Khehar, Justice AK Sikri and the newly-appointed Justice Rohinton Nariman.
This ruling gave breathing room to all death-row convicts for an open court review. It also gave immediate relief to all death-row convicts whose review petitions had already been rejected. They are free to re-apply for the review of their death sentences. However, the court took exception to the case of Mohammad Arif, who was convicted in the 2000 Red Fort terror shootout case.
Some of the beneficiaries of this judgment include Yakub Memon, convicted in the 1993 Mumbai serial blasts case; C Muniappan, who burned a bus in Tamil Nadu in 2000; BA Umesh, convicted for a rape and murder in Bengaluru; Sundarrajan, convicted for the kidnapping and killing of a minor; and Sonu Sardar, convicted for killing five members of a family.
Another convict to benefit is Surender Koli, convicted in the 2006 Nithari killings. Koli, who was poorly represented in the trial, faces trials in 15 other cases (Hanging Koli may bury the truth of Nithari killings, 30 August). TEHELKA also discussed Memon’s case and his questionable involvement in the blasts case (Redemption for Yakub Memon? 15 June).
According to the lone dissenting voice, Justice Chelameswar, the law stipulates that a lower court’s death sentence is confirmed by the high court only by a judicial scrutiny of the evidence in the case by two judges. He pointed out that despite the limited scope of appeal to the high court, the apex court had entertained petitions for appeal. He preferred to leave it to the discretion of the judge hearing the review.
Notably, a convict has the right to change his defence team at any stage, and in many cases, these change at every stage if the person feels inadequately represented. In a number of cases, the court of public opinion, regulated by the media, often decides a person’s guilt before the police have conducted a proper investigation. This puts pressure on the investigation as well as the judicial proceedings.
The rest of the bench agreed that oral submissions before a full court would give the condemned prisoners a further chance to be heard and make a different impression than the one in writing.
The 187th Law Commission (2003) had recommended that death sentences be heard before a five-judge bench similar in size to a bench in army, navy and air force court martials hearing death sentences. It had recommended that if three judges heard the death sentence case, it could add two more during the review stage. The apex court amended its rules last month to provide for three judges to decide death sentence appeals.
Many lawyers pointed out that as per an Amnesty International report, around 100 death sentences are given out each year in the country and around 60 would be added to the apex court’s workload each year. In case of an error of either commission or omission while drafting a review petition, it could be suitably rectified during oral submissions.
Senior counsel Siddharth Luthra, who assisted the apex court on this issue, said that a single reasonable ground could well be drowned by other important grounds through written submissions circulated through the chambers.
The four Supreme Court judges pointed out that several countries have proper guidelines for sentencing but India does not. The Indian Penal Code prescribes maximum punishment for a crime and the judge has expansive discretionary powers in deciding the punishment.
One of the keywords mentioned in the ruling is ‘reasonable procedure’, which, the judges held, must be integral to a death sentence and is not related to the eventual outcome of such a review.
Though some are already criticising the judgment, it takes India a step closer to eventual abolition of the death penalty. Without any ‘judicial overreach’ or ‘judicial activism’, the apex court may have hinted on its stand against the death penalty. Now, it is for the legislature to take a cue and look at the death penalty and start with laying down a sentencing policy.
The law is clear that the ambit of judicial discretion in sentencing is monitored and the judge has to provide a clearly reasoned order for sentences. Harsh sentences will have to withstand the test of all appellate stages.
However, that is not the sole concern of death penalty cases because the first stage, that of investigation, and the subsequent stage of prosecution need closer monitoring. There are no examples of a prosecutor withdrawing a case where the police have failed to gather enough evidence. In cases of circumstantial evidence, such as the Aarushi-Hemraj double murder case, the burden of proof is shifted to the defendant and it appears as if the prosecution can get away by generating reasonable doubt in the judicial mind that a crime was committed and not the other way around.
It is necessary to look at some of the death penalty cases pending for review to understand the extent of damage that hurried verdicts based on poor investigation and mishandled prosecutions can cause.
In the Surender Koli case, the central evidence is his ‘confession’ before the magistrate, which led to his conviction and death sentence. The man has been crying himself hoarse about his merciless torture at the hands of the police prior to the statement before the magistrate.
Witnesses say that for a full year, Koli, on seeing a man in uniform, would kneel down, fold his hands (as if in prayer) and plead that he was guilty. “I have done it, sir, I have done it,” he would reportedly scream.
A day after this judgment, on 3 September, a sessions court in Ghaziabad issued the death warrant to execute Koli while 15 chargesheets against him remain. A frantic Koli has been trying to get in touch with his lawyers who have already started to scramble for a stay on the execution. The 2 September apex court ruling allows Koli another chance at a review petition. The first review petition, which was dismissed without an open-court hearing, was based on Koli’s letter to the Chief Justice, which was then converted by the Registry into a review petition. Needless to say, it did not have the efficacy of a petition drafted by a lawyer.
Another troublesome case is that of Yakub Memon, who allegedly handled the finances in his brother’s (Tiger Memon) underworld dealings in Mumbai. In the 1993 Mumbai serial blasts, the other accused who handled the bombs and placed them at the locations were let off because of their ‘poor background’. However, Memon, convicted as a co-conspirator, was given the death sentence.
There are several holes in the investigation beginning from Yakub’s knowledge of the terror plot, which was based on conjecture and confessions of co-accused, extracted by threats of torture under the diabolical Terrorist and Disruptive Activities (Prevention) Act and promises of clemency. (TADA was later repealed.) Tiger had Yakub and other family members moved to Pakistan immediately after the blasts. Very few know that when their father reached Pakistan, he thrashed Tiger in front of all of his gang members-turned-terrorists.
When opportunity arose, Yakub and his family (except Tiger) came back to India in three waves. But this was not acceptable to the IB and CBI, who were unable to find the real suspect — mafia don Dawood Ibrahim. It was easy to corner Yakub, though he had come back with bonafide intentions, which were edited out of a much-hyped interview and media persecution that has led to his being wary of the media.
“As far as the effect of this judgment on my client is concerned, I think it will be the proverbial difference between life and death,” says Faisal Farook, one of the defence lawyers for Yakub Memon. “With all due respect, there are several glaring errors that are apparent on the face of the judgment delivered on 21 March (dismissing Memon’s appeal), which have been duly highlighted in our review petition.
“As far as the effect of this judgment on death penalty itself is concerned, I think that is a much wider argument and there will always be exponents for and against the death penalty. But one thing is certain. Due to this judgment, which in my humble opinion is historic, a decision to end a human life shall henceforth be taken with adequate safeguards and compete transparency.
“It is a very progressive and mature judgment, which shows that the Supreme Court, despite a heavy docket, is not willing to compromise in the dispensation of justice and is further willing to accept that as judges are human beings, errors are bound to creep into the justice delivery system; and by this judgment they have ensured that any possibility of such errors is eliminated to a great degree.
“By allowing hearing of review petitions in death sentence matters in open court, that too by three Hon’ble Judges, the Supreme Court has added a very important safeguard to ensure that justice is not merely done but also appears to have been done and thereby left no room for doubt or dissatisfaction in the mind of a death-row convict, permitting him to make peace with his fate.”
The nda government has it work cut out amidst the pressure of political compulsion despite enjoying a majority in the Lok Sabha. The UPA had selectively carried out executions in the cases of Afzal Guru and Ajmal Kasab, who were both on death row for acts of terror. Several discrepancies in the Afzal Guru case were highlighted regularly, but the government ignored them.
The surreptitious manner of the two executions led to a Supreme Court ruling that the condemned person must be given at least two weeks’ notice of his/her impending execution to start closing all his/her affairs.
In the death penalty case of Sonu Sardar, he was convicted for the premeditated murder of a man and his family, including two children (while sparing three), to extort money from him. The death sentence was given, calling it a rarest-of-rare circumstance, and Sardar was not given the benefit of being just 23 years of age.
However, it turned out that Sardar’s trial lawyer might have got it wrong and later investigation has found out that Sardar may have been just two months into adulthood, that is, 18 years and two months old when the crime was committed.
Also, two of his co-accused fled during a jailbreak but Sardar did not. But, these two points were not taken as mitigating circumstances during his trial and subsequent appeals and reviews despite the point being noted in the order.
In brief, the age consideration gave flexibility to Sardar’s co-accused but not to him because Sardar’s trial lawyer did not find out the correct age.
It is important to note that Sardar was identified by a 10-year-old girl who had fled the scene as soon as the perpetrators had entered the house.
One of the petitioners who will not benefit from the judgment is Mohammad Arif, who was convicted in the Red Fort terror attack case. Arif’s review petition and a curative petition of the review have both been dismissed.
Though the apex court held that dismissed review petitions could be reopened, it also held that once a curative petition had been dismissed, it left no other avenue. Since Arif was convicted in a terror case, there is a chance that the State will proceed with his execution.