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My notes - capital punishment 13-10-2015

Capital punishment

 

 

Shabnam vs union of India case

  1. As the law stands after the decision of the Supreme Court in Shabnam, a black warrant proceeding cannot take place without the accused and his lawyer being present. Shabnam now requires that five elements be satisfied: that a convict be given prior notice of the death warrant proceeding; that the warrant specify the exact date and time of execution and not a range of dates; that a reasonable period of time be fixed between the date of the order on the warrant and the date set for execution to enable the convict to meet his family and pursue legal remedies; that a copy of the execution warrant be made available to him; and that he/she be given legal aid at these proceedings.

Shatrughan Chauhan v. Union of India

  1. The Supreme Court in Shatrughan Chauhan v. Union of India (January 2014) once again affirmed the rights of death row prisoners to challenge the rejection of their mercy petition on certain grounds.
  2. Ideally, ‘black’ warrant proceedings ought to take place only after a prisoner has exhausted all legal remedies.

 

Death penalty - for and against

  1. The death penalty is unjust and inhuman. Its continued use is a stain on a society built on humanitarian values

 

  1. Miscarriage of justice is, in fact, one of the biggest concerns about the death penalty. 

Studies conducted by Amnesty International and the People’s Union for Civil Liberties have shown that the process of deciding who should be on death row is arbitrary and biased.

14 eminent retired judges wrote to the President, pointing out that the Supreme Court had erroneously given the death penalty to 15 people since 1996, of whom two were hanged. The judges called this “the gravest known miscarriage of justice in the history of crime and punishment in independent India.”

 

Law commission report

 

95.7% is the error rate among the trial courts which gave death sentence. Error rate among the Supreme court rulings is 23.2%

 

Inter state variation in sentencing - Kerala two times the national average and delhi 6 times for murder.

 

Poor and religious minorities were awarded more death penalities than others . It is 75% sentenced to death among poor and minorities.

 

 

  1. Lawmakers in India find it convenient to hold up the death penalty as a symbol of their resolve to tackle crime, and choose to ignore more difficult but more effective solutions like social education and police or judicial reform. The certainty of punishment, not severity, is the real deterrent.

 

 

  1. capital punishment is merely revenge masquerading as justice.

When the government is trying to create a just society where there is less violence and murder, it cannot be allowed to commit the same crime against its citizens in the name of justice.

 

  1. Not in line with global trend -

The world is moving away from using the death penalty. The European Union has made “abolition of death penalty” a prerequisite for membership. The 65th United Nations General Assembly voted in December 2010, for the third time, in favour of abolishing the death penalty and called for a global moratorium on executions. Amnesty International reports that 140 countries — more than two-thirds of the world — do not use the death penalty any more. India needs to recognise this global trend, and act in step with it.

 

  1. Detterence was a myth - rehabilitation and restoration are lost and venegence through courts is gaining prominence.

For

  1. Rights of innocent victims
  2. Rarest of the rare crimes
  3. Law commission on death penalty

Questioning the “rarest of rare” doctraine, the panel said that administration of death penalty, even within the “restrictive environment of rarest of rare doctraine”, was constitutionally unsustainable.

 

“After many lengthy and detailed deliberations, it is the view of the Law Commission that the administration of death penalty, even within the restrictive environment of ‘rarest of rare’ doctrine, is constitutionally unsustainable.

 

 Continued administration of death penalty asks very difficult constitutional questions… these questions relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system,” the report stated.

 

Pointing out that in the last decade, the Supreme Court had on “numerous occasions expressed concern about arbitrary sentencing” in death penalty cases, the panel said, “There exists no principled method to remove such arbitrariness from capital sentencing. A rigid, standardisation or categorisation of offences which does not take into account the difference between cases is arbitrary in that it treats different cases on the same footing. Anything less categorical, like the Bachan Singh framework itself, has demonstrably and admittedly failed.”

 

The commission also questioned the mercy petition system, provided for under the Constitution, saying, “The exercise of mercy powers under Articles 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence.” The report stated that from January 26, 1950 till date, successive Presidents have accepted 306 mercy petitions and rejected 131.

 

Referring to victims of crimes, the panel said in focusing on death penalty “as the ultimate measure of justice to victims”, the restorative and rehabilitative aspects of justice are lost sight of. It said reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime.

 

It is essential that the state establish effective compensation schemes to rehabilitate victims of crime. At the same time, it is also essential, the panel said, that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases.

 

“The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence, it is essential that a witness protection scheme also be established.

 

The need for police reforms for better and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis,” the report stated.

 

Curative petition

The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.

 

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