#India – Execution of Prof. Bhullar deferred #deathpenalty

 

By PARMJIT SINGH

New Delhi, India (June 19, 2013): It is learnt that citing the “bad physical and mental health” of Sikh political prisoner Prof. Devinderpal Singh Bhullar, the office of the Delhi Lt. Governor of Delhi have deferred his execution.

According to a news reported by Indian Express (IE): “[t]his decision, a source said, was taken after scrutiny of the report submitted by the medical board formed by the Delhi government to ascertain Bhullar’s condition. The file has been forwarded to the office of the Director General (Prisons), Tihar Jail, the source said”.

“An objective, compassionate and humane view of the case has been taken after considering the deteriorating physical and mental health of Devinderpal Singh Bhullar and it has been decided to defer the matter. This decision was taken after scrutinising the report submitted by the medical board. Subsequently, he will be examined by a medical board again and the matter will be re-examined, the source said”, the news reported by IE reads further.

In its report, the medical board is learnt to have stated that Bhullar suffers from severe depression with psychotic symptoms. The jail manual states that a death row convict has to be declared physically and mentally fit before execution.

The file stating the L-G’s views has reportedly been recently forwarded to the office of the DG, Tihar, which will now send it to the home ministry before it is finally sent to the Delhi government.

It is notable that there was strong opposition to the execution of death sentence lashed upon Prof. Bhullar by Indian courts. Prof. Bhullar is sentenced to death in a highly contested manner by the Indian courts, and the Supreme Court of India repeatedly upheld his execution in a surprisingly controversial manner, where the the presiding judge of three judges bench acquitted him but two other judges upheld his death sentence on strange reasoning ignoring the absence of evidence against Prof. Bhullar.

Prof. Bhullar and his family are the victims of state-repression, as seven members of his family suffered severe custodial torture; whereas two from the family – Prof. Bhullar’s father and uncle, were secretly killed by Punjab police during enforced disappearance.

Delhi’s Lt. Governor’s decision is expected to brought a sigh of relief for Prof. Bhullar’s family as the decision has halted the execution of Prof. Bhullar for the time being but it must be remembered that the decision does not remove him from the death row permanently.

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United Nations to discuss abolition of #deathpenalty by June end: Ban Ki-moon

Press Trust of India | Updated: June 14, 2013 08:21 IST

United Nations: United Nations Secretary General Ban Ki-moon has hailed the growing momentum against capital punishment, while voicing concern that a some countries continue to impose the death penalty, often in violation of international standards.In a message to the Fifth World Congress against the Death Penalty, held in Madrid, Mr. Ban said that the full abolition of the death penalty has support in every region and across legal systems, traditions, customs and religious backgrounds.

Currently, more than 150 countries have either abolished the death penalty or do not practise it. Last year, 174 United Nations Member States were “execution-free”, he said.

“Despite these positive trends, I am deeply concerned that a small number of States continue to impose the death penalty, and thousands of individuals are executed each year, often in violation of international standards,” said the Secretary-General.”Some countries with a longstanding de facto moratorium have recently resumed executions,” he noted.

He said that death penalty is at times used for offences that do not meet the threshold of “most serious crimes” such as drug crimes, and a few States impose capital punishment against juvenile offenders, in violation of international human rights law.

Ban also pointed out that information concerning the application of the death penalty is often cloaked in secrecy, and that the lack of data on the number of executions or the number of individuals on death row “seriously impedes” any informed national debate that may lead to abolition.

“The taking of life is too absolute and irreversible for one human being to inflict on another, even when backed by a legal process. Too often, multiple layers of judicial oversight still fail to reverse wrongful death penalty convictions for years and even decades,” he said.

This problem, he added, will be discussed at a UN panel in New York at the end of this month.

The UN General Assembly first voted on a moratorium in 2007, and again in December 2012, when it adopted a resolution calling for a progressive restriction on the use of capital punishment and eliminating it entirely for felons below the age of 18 and pregnant

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Swiss Minister calls for ‘world without #deathpenalty’

Didier Burkhalter (left) with his Spanish counterpart, José Manuel García-Margallo y Marfil (Keystone)

June 12, 2013 – 21:38

Swiss Foreign Minister Didier Burkhalter has highlighted Switzerland’s commitment to the abolition of capital punishment at the opening of the Fifth World Congress against the Death Penalty in Madrid.

“Switzerland aims to ensure that those countries which have not as yet abolished the death penalty at least place a moratorium on its use,” he said in a statement released by the foreign ministry.

In it, he added that capital punishment was incompatible with the values represented by Switzerland and had an impact on the country’s other obligations such as the prohibition of discrimination.
 
The death penalty was abolished from Swiss federal criminal law in 1942, but remained available in military criminal law until 1992.

Together with Spain, France and Norway, Switzerland is patron of the Fifth World Congress against the Death Penalty which is hosting around 1,500 delegates from over 90 states in Madrid until Saturday.

Today, 140 of the world’s 198 states have renounced the use of capital punishment, but a quarter still retain the death penalty. Executions continue to take place every year in around 20 states – mainly China, Iran, Iraq, Saudi Arabia and the United States.

In 2012, various states (Botswana, Gambia, India, Japan, Pakistan and Kuwait) reapplied the death penalty after years of de facto moratorium, according to the foreign ministry.

Bilateral talks

Prior to the Fifth World Congress against the Death Penalty, Didier Burkhalter held bilateral talks with his Spanish counterpart, José Manuel García-Margallo y Marfil.

Topics set to be discussed included the OSCE chairmanship which will be taken over by Switzerland in 2014, the situation in Europe, youth unemployment and bilateral issues.

“Step-by-step progress”

The stated Swiss goal is a “world without the death penalty” as capital punishment cannot be reconciled with respect for human rights and, in particular, violates the right to life, said the foreign ministry statement.

“Switzerland strives for step-by-step progress with this goal in mind. It advocates for a moratorium or at least certain limitations to be placed on the use of capital punishment in states which continue to employ the death penalty through lobbying at both the multilateral and bilateral level.”

The foreign ministry also calls for compliance with international standards concerning withholding the death penalty for minors and non-enforcement of capital punishment for pregnant women or mentally disabled persons.

In this regard, Switzerland supports, among others, the work of the International Commission against the Death Penalty which was launched at the Fourth World Congress in Geneva in 2010.

swissinfo.ch and agencies

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CPI(M) demands abolition of #deathpenalty

Monday, May 13, 2013, 20:13 IST | Place: New Delhi | Agency: PTI

Decribing executions as “inhuman”, CPI(M) on Monday said it stands for abolition of death penalty in the country as it is “arbitrarily implemented” and advocated imprisonment till death in rarest of the rare cases.

Decribing executions as “inhuman”, CPI(M) on Monday said it stands for abolition of death penalty in the country as it is “arbitrarily implemented” and advocated imprisonment till death in rarest of the rare cases.

A decision on the party’s position was taken at a two-day Central Committee meeting of CPI(M) that ended here yesterday.

Addressing a press conference here, CPI(M) General Secretary Prakash Karat said the Central Committee discussed a note presented by the Polit Bureau on the abolition of the death penalty and decided that it will advocate the abolition of capital punishment.

“In India, death penalty, as it is in practice is arbitrarily implemented. It is inhuman…Instead of capital punishment, the party wants in rarest of the rare cases and most heinous crimes, life imprisonment should be extended for the entire life of the person convicted with no scope for remission,” Karat said.

He said the Politburo had been discussing the issue since last year.

Referring to the controversy surrounding the execution of Parliament attack case convict Afzal Guru, Karat said he was denied what was provided in the law about right to appeal after the mercy petition was rejected.

“Afzal was denied this opportunity and his family was not informed also,” he said.

The CPI(M) leader said 97 countries have abolished death penalty and it was time for India to change its statute.

Last month, CPI(M) Polit Bureau member Sitaram Yechury had said that the party were willing to discuss and consider death penalty for rapists.

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Germany opposes death penalty for Devender Singh Bhullar

New Delhi, May, 10 (ANI): Germany has opposed the death penalty for Indian convict, Devender Singh Bhullar, who is facing the gallows for the 1993 militant attacks on a top police officer and also a political leader, claiming several lives.

Bhullar was extradited from Germany and tried by a court in India. German Ambassador to India, Michael Steiner said on Friday that they were against death penalty, as they don’t believe that it serves the cause of justice.

The Supreme Court had last month rejected a petition by Bhullar seeking that his death sentence be commuted to life imprisonment as his mercy plea had not been decided by the President for a long time.

Bhullar was given the death sentence for killing nine people with a car bomb in Delhi in 1993.

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Supreme Court of India – ‘Revolving door’ in lawsuits

M J Antony  May 07, 2013 , BS

The Court now limits review petitions to only grave errors in judgments

When litigants lose their final appeal in the Supreme Court, most of them learn to grin and bear it. However, lawyers tend to advise those with deep pockets to carry on the fight in different modes. Some desperate measures are filing applications for clarification and modification, moving review petitions and finally, curative petitions. Most of them turn out to be a triumph of hope over experience.

The first method to revive the lost cause is to file an application for clarification, alleging ambiguities in the decision where none exists. The bench that passed the judgment usually sees through the game and dismisses it. Another technique is to file an application for modification of the order, pleading technical hurdles in its implementation. This is also perceived as a ploy to re-argue the case and is mostly rejected.

If both stratagems fail, and there are more funds for litigation, there are two more options. The first one is moving a review petition. More than 90 per cent of them are dismissed in judges’ chambers during the lunch recess. A few months ago, 340 review petitions relating to land acquisition were massacred in minutes. It was a rare instance of a government authority returning twice with review petitions (Haryana Industrial Development Corp vs Mawasi).

Hoping to contain the flow of such petitions, the Supreme Court a couple of weeks ago emphasised in a batch of petitions that a review was justified only when there was a serious error in the judgment (JSW Steel Ltd vs Sandur Manganese & Iron Ores Ltd).

“In review jurisdiction,” stated the judgment dismissing the petitions, “the Court shall interfere only when there is a glaring omission or patent mistake, or when a grave error has crept in the judgment that we failed to notice. Mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the judgment in the guise that an alternative view is possible under the review jurisdiction.”

This view had to be reiterated because of the routine filing of review petitions. There must be an “error apparent on the record”, as the Civil Procedure Code and the Supreme Court rules say. In a leading case, Parsion Devi vs Sumitri Devi, the Court had explained the law thus: “An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. It is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise.”

If the ingenuity of the lawyer and the client’s pockets are not yet exhausted, there is still another way. This path was broken by the Supreme Court itself – only to be regretted leisurely. In the case Rupa Ashok vs Ashok Hurra, the Court stated that “the almighty alone is the dispenser of absolute justice” and the rest might err. Ensuring certainty and finality of a judgment of the Court of last resort could not be made an end in itself. Even the law must bend before justice.

With such good intentions, the new curative petition was forged by the Court. This petition must be accompanied by a recommendation of a senior advocate, stating that the case requires re-examination. The curative petition has to be first circulated to a bench of three seniormost judges. They will decide by a majority that the case should be re-examined. Only then the case will be heard by the judges, who heard the case originally.

Despite such strict conditions, in the case Sumer vs State of UP, the Constitution bench for the first time gave vent to the rampant misuse of the provision for curative petitions. It said: “The apprehension of the bench (which delivered the Hurra judgement) that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from the filing of large numbers of petitions. It was expected that the curative petitions will be filed in the rarest-of-rare cases, but in practice, it has just been opposite.” The judgment quoted one certificate to show how casually they are issued. The senior counsel’s recommendation comes easily but, perhaps, not cheaply.

The quest for perfect justice must end somewhere. “We are not final because we are infallible, but we are infallible only because we are final,” said US Supreme Court judge Robert Jackson. The Supreme Court, with over 66,000 cases before it, can hardly afford the luxury of providing more revolving doors to rich litigants. They must give way to the ordinary people waiting for years at the gates of justice.

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Devinderpal Singh Bhullar’s wife moves SC for stay on execution of death penalty

Tuesday, May 7, 2013, 13:32 IST | Place: New Delhi | Agency: PTI

The apex court had on March 26, 2002 dismissed Bhullar’s appeal against the death sentence awarded by a trial court in August 2001 and endorsed by the Delhi High Court in 2002.

1993 Delhi blast convict Devinderpal Singh Bhullar‘s wife today approached the Supreme Court seeking stay on execution of his death sentence till her review plea against its verdict is decided.

She submitted in her plea that she has filed a review petition against the Supreme Court verdict of April 12 in which the court had rejected her petition to commute his death sentence to life imprisonment on ground of delay on the part of the government in deciding his mercy plea.

Khalistan Liberation Force (KLF) terrorist Bhullar was convicted and awarded death penalty for triggering a bomb blast here in September 1993, killing nine people and injuring 25 others, including then Youth Congress president M S Bitta.

The apex court had on March 26, 2002 dismissed Bhullar’s appeal against the death sentence awarded by a trial court in August 2001 and endorsed by the Delhi High Court in 2002.

He had filed a review petition which was also dismissed on December 17, 2002. Bhullar had then moved a curative petition which too had been rejected by the apex court on March 12, 2003.

Bhullar, meanwhile, had filed a mercy petition before the President on January 14, 2003. The President, after a lapse of over eight years, dismissed his mercy plea on May 25, 2011.

Citing his delay, he had again moved the apex court for commutation of the death sentence but his plea was rejected.

The apex court had on May one commuted the death sentence awarded to murder convict M N Das, whose mercy petition was rejected by then President Pratibha Patil.

The court had allowed the plea of Das who had approached it for commutation of his death sentence on the ground that the President had taken twelve years to decide his mercy plea

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Mahendra Nath Das’s mercy plea: Why SC commuted his death sentence

Dhananjay Mahapatra, TNN | May 3, 2013,

Former President APJ Abdul Kalam had in 2005 favoured commutation of Mahendra Nath Das’s death penalty to life term.

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NEW DELHI: Revealing the casual manner in which mercy petitions are dealt with, theSupreme Court found that former President APJ Abdul Kalam’s 2005 note favouring commutation of Mahendra Nath Das’s death penalty to life term was never placed before his successor Pratibha Patil, who rejected Das’s mercy plea in 2011.

This and the 12-year delay in deciding Das’s mercy plea were cited by a bench of Justices G S Singhvi and S J Mukhopadhaya to commute hisdeath sentence to life term on Wednesday.

Kalam had considered the mercy petition in light of the recommendation made by the home minister and passed an order on September 30, 2005, saying, “I have considered the mercy petition proposal sent for my consideration in respect of Mahendra Nath Das. I find that though the crime committed was of a gruesome nature, yet the conduct of the accused does not show trace of pre-meditated murder. The crime can well be attributed to a gross lack of mental equanimity on his part.”

Kalam continued, “In such circumstances, his mercy petition in my view, be accepted and his death sentence commuted to life-long imprisonment (that is for the rest of his life). During his further incarceration in prison, he may be given periodic counseling by spiritualist and moral leaders which could help reform his personality and mental psyche. This may be considered.”

Apart from the delay in considering the mercy plea, the bench of Justices Singhvi and Mukhopadhaya noticed that the home ministry had prepared another note on Das’s mercy plea on October 5, 2010, with reference to Kalam’s note.

But “what was most intriguing” was that while making a recommendation on October 12, 2010 to Patil for rejection of Das’s mercy plea, the home minister did not mention Kalam’s note of September 30, 2005. “Why this was done has not been explained by the respondents,” the bench said.

“Omission to make a mention of the order passed by her predecessor and note dated September 30, 2005 from the summary prepared for her consideration leads to an inference that the President was kept in the dark about the view expressed by her predecessor and was deprived of an opportunity to objectively consider the entire matter,” Justice Singhvi, who authored the judgment, said.

“Therefore, it must be held that the President was not properly advised and assisted in the disposal of the petition filed by Das,” the bench said.

“In the above backdrop, we are convinced that 12 years delay in the disposal of Das’s mercy petition was sufficient for commutation of the sentence of death and the division bench of the (Guwahati) high court committed serious error by dismissing the writ petition solely on the ground that he was found guilty of committing heinous crime,” the bench said.

“The rejection of Das’s mercy petition is declared illegal and quashed and sentence of death awarded to him by the trial court, which has been confirmed by the high court and this court is commuted into life imprisonment,” it added.

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Rapes will come down if people shun meat, alcohol: Swami Agnivesh #WTFnews

PTI | Apr 27, 2013,

NEW DELHI: Rape cases will come down if people shun non-vegetarian food and alcohol, activist Swami Agnivesh said on Saturday.

“We cannot stop a crime like rape by policing only…. I think rapes will come down significanlty if people stop eating non-vegetarian. There has been lot of research on this…. Rapes will come down significantly if alcohol consumption is not there,” he told reporters here.

He said a lot of crimes and accidents take place due to consumption of alcohol.

Arguing on the benefits of a vegetarianism, he said Japanese scientists conducted a study on the oldest man on earth recently and they found that he was a vegeterian.

“Every research conducted in this world points to one fact that red meat is the reason behind all diseases,” he said.

Agnivesh said that all the six accused in the gruesome rape of a young girl in a moving bus on December 16 last year were drunk as well as the accused in the recent incident of sexual assault on a five-year-old girl.

“In both the incidents, the accused consumed alcohol. This explains clearly that alcohol drove them to commit the crime. Alcohol shuts down the moral thinking of a person,” he said.

“Government is not ending alcohol-production in the country as it fetches revenue. All the states have now started competing to outnumber each other in alcohol production. This has become the norm,” he said.

Expressing concern over the fact that everyday one billion animals are slaughtered, he said that “its consequesnce will be severe.”

Regretting the loss of values in human beings, Agnivesh said, “There are no moral and spiritual values left in people. Schools today do not teach children about the evil-consequences of drinking. We cannot blame an individual for a crime. The society, as a whole, is responsible.”

Asked about whether death penalty will stop rape, Swami said, “Death penalty will not do anything. I do not support it. Death sentence should not given to anybody including those who attack Parliament. Even Kasab should not have been given death sentence,” he said.

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India has a flawed notion of mercy #deathpenalty

By RAJEEV DHAVAN

PUBLISHED: 20:47 GMT, 21 April 2013

•  

The quality of mercy varies from person to situation, but it is for all: the preferred rich and the unpreferred poor.

Dispensing mercy is a compassionate art with which India is out of touch. From 2001-2011, the death penalty was finally awarded to 1,455 persons. The higher courts commuted 4,321 death sentences into life imprisonment.

Delhi saw the judiciary commuting 99 per cent of the death penalties (2,462 cases). The commutation in other states was less dramatic – J-K (18), UP (458), MP (62), Bihar (343) Maharashtra (175), Jharkhand (300), Chhattisgarh (24), Assam (97), Odisha (68), Punjab (24), Rajasthan (33), Kerala (23), Tamil Nadu (24), Uttarakhand (46).

The story is uneven, the data incomplete. But, it shows that the “rarest of rare” formula is not fully understood by the sessions or even higher court judges.

It is so easy to interpret the ‘rarest of rarest’ as including incessant killings, brutal deaths, torture and gender violation. These have become inflexible categories beyond interpretation.

As soon as trial judges find that a case falls in these broad categories, they award the death penalty. In at least half the cases, the death sentence is commuted by the High Courts. Then the issues get narrower as we go to the Supreme Court, which has a confused record veering towards the death penalty in terrorist and gruesome cases.

By the time the matter reaches the President, the decision becomes political and taints mercy.

Formula

A huge amount of time elapses between the criminal ‘event’ and the death penalty. In the Bombay blasts, the interval was two decades. In the Parliament case, more than a decade. On 6 April 2013, the CBI Court awarded the death penalty to three policemen 31 years after the fake encounter case in the Gonda district of U.P.

What happened during these years? How do you judge culpability three decades old? Or apply the ‘rarest of rare’ formula?

This is an important flaw in the ‘rarest of rare’ formula. When do you apply it? In relation to the criminal event? The trial court’s decision? The High Court‘s decision? The Supreme Court’s decision? At judicial levels, the decision is ‘event-based’ – with very little allowance for repentance in sentencing.

Beyond the judicial level, the same “event based” formula is applied in pardon cases with a political twist. Communal voices ask for death – wondering whether Caesar will put his thumb up or down. The crowd or the populace roars for death. It is a brave Caesar or President to turn down the crowd or the politics of the aftermath. The discourse on mercy is eclipsed.

Our system is no better. But to return to the question of when we apply the ‘rarest of rare’ formula. Is it essentially “criminal event” based? But does nothing change over time? Remember Heraclitus saying: “You cannot cross the same river twice.” And Cratylus adding: “You cannot even cross it once.”

Ten years is a long time. Twenty or thirty years, even more. Will we always judge the crime and never the person? Or a person as an adjunct to the crime? Must all Pakistani Kashmiri militants die? They will not retract from their beliefs. But over time, they change – some repent, some cannot say that they do.

The mercy of the presidential office has become irrelevant. The Supreme Court’s reprieve from President Pranab Mukherjee’s refusal to pardon 8 persons was brief. At this post-pardon stage, the Supreme Court limits its inquiry to whether the President acted malafide.

Significantly, Pranab’s predecessors forced the Home Minister to think. President Patil rejected 3 pleas in 5 years including in the Bhullar car bomb case of 1993, Rajiv’s killers, and a beheading incident. Kalam rejected Dhananjoy’s pleas from Calcutta. Narayan rejected no mercy pleas. The present presidential dispensation refusing pardon for death row is inexplicable. The system is all wrong, its understanding of mercy and just punishment too limited. Mercy is about the person not just the event.

Sanjay Dutt

Granted more time: Actor Sanjay Dutt during shooting of the film ‘Policegiri’ at a studio in Mumbai

The bottom line is: we have a system of punishment but not mercy, of legicide by the state, but little or no reprieve. There is parole for those serving sentences. Only silence for the dead.

The latest twist in the Sanjay Dutt case, giving him time for four weeks, must make us think. The good part is that before imprisonment everyone has unfinished business. More important than Sanjay, a woman who has to make provision for her children, or for the old. A sick person whose needs hospital treatment. In this list, the businessman or actor who has to fulfill a contract must come lower down.

But what the Sanjay precedent suggests is the need for a new penology so that everyone is allowed a furlough to complete some part of their unfinished obligations before their prison sentence. The bad part of the Sanjay decision was that it gave the impression of favouring the rich and famous.

Impact

We are a troubled and violent society. Awarding death sentences adds to the violence without deterrent effect. The proof is that thousands of homicides are un-reported. Violence is unabated. If India decides that punishment deserves that a tooth must be broken for a tooth, the incidence of death penalty will increase to no avail.

Our retributive system of punishment looks at the crime and extracts revenge: usko zinda matt chodho (don’t let him live). Then, the state assumes a right to kill, rightly denied to its citizens. Our system lacks mercy and, therefore, justice.

The writer is a Supreme Court lawyer

Read more: http://www.dailymail.co.uk/indiahome/indianews/article-2312545/India-flawed-notion-mercy.html#ixzz2RBjLdArm
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