India has a flawed notion of mercy #deathpenalty


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).

A flawed notion of mercy

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.


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 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.


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

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India -Noted activist Dr. Sunilam granted bail #goodnews


By Newzfirst Correspondent2/15/13


Jabalpur – The Madhya Pradesh High Court Friday suspended the life sentence of noted activist Dr. Sunilam Mishra and granted him bail in a 14 year old case of rioting. A sessions court in Multai on 19 October 2012 had sentenced Dr. Sunilam and two others to rigorous life .


The High Court, Jabalpur has suspended the life sentence awarded to Dr. Sunilam and two others in a 14 year old case of rioting.The HC has also granted bail to them, Aradhana Bhargava, defense counsel of Sunilam told Newzfirst.


The High Court also granted bail to Prahlad and Sheshrao, who were also convicted along with Dr. Sunilam in the same case.

All the three were sentenced to rigorous imprisonment on 19 October 2012 by a sessions court in Multai under the provisions of section 307 (attempt to murder) and 302 (murder) for seven years on each count.

Dr. Sunilam was charged under sections 148 (rioting with deadly weapons), 145 (unlawful assembly), 152 (assaulting and obstructing public servant when suppressing riot), 333 (causing grievous hurt to deter public servant from his duty), 307(attempt to murder), 302 (murder) and other serious sections of the IPC.

Dr. Sunilam was leading a farmers’ agitation against the district administration of Betul on 12 January, 1998. As the agitation turned violent, 24 farmers were killed in the police firing that was ordered to bring the situation under control.

The MP Government lodged 66 false cases against Dr. Sunilam, who was also a leader of the Kisan Sangharsh Samiti, and other farmers in one single incident of police firing in Multai.

In January 12, 1998, 24 innocent farmers were shot dead and 250 injured during police firing in Multai,  a town of Madhya Pradesh’s Betul district.

Dr. Sunilam, socialist politician and a two time MLA in Madhya Pradesh Assembly was also a part of Indian People’s Movement against WTO and the anti-corruption movement in the country.


#India- Court issues order on right of pregnant prisoners to access MTP #womenrights #reproductiverights



INDORE – The High Court of Madhya Pradesh at Indore issued an order allowing Hallo Bi, a pregnant female prisoner, to exercise her reproductive rights under the Medical Termination of Pregnancy Act (Act). Hallo Bi had been sold into prostitution by her husband and after months of continuous instances of rape, she became pregnant.

In the order, the Court wrote, “We cannot force a victim of violent rape/forced sex to give birth to a child of a rapist. The anguish and the humiliation which the petitioner is suffering daily, will certainly cause a grave injury to her mental health.” This is a positive development for Hallo Bi and sets an important precedent for similar circumstances by affirming rape victims’ right to lawful termination of pregnancy under the 1971 Act. Unsafe abortions are one of the leading causes of maternal mortality in India with approximately 6.7 million abortions performed every year at unregulated facilities, often by medical practitioners untrained in abortion services.

In early December 2012, Human Rights Law Network (HRLN) Reproductive Rights Unit Assistant Director, Ms. Karla Torres, read an article in the Times of India about a pregnant woman who was in prison for murdering her husband and had been ordered to make a written application to the High Court for a termination of pregnancy. After communicating with HRLN advocate Mrs. Shanno Shagufta Khan in Indore and meeting with Hallo Bi, HRLN filed a petition requesting the High Court to allow for a medical termination of pregnancy.

The petition also stressed the Act’s silence on this issue and asked the High Court to issue guiding directions. As both the Act and the jail manual are silent on this aspect, the High Court had requested Hallo Bi to submit a written application for a medical termination of pregnancy. The High Court subsequently denied Hallo Bi’s application. HRLN’s petition stressed that the High Court had erred in not allowing Hallo Bi’s application as the power to refuse the same did not lie with the High Court.

Under the Act, the decision to terminate a pregnancy is between a woman and her doctor(s). As such, once a medical practitioner is of the opinion that the pregnant woman falls within the conditions laid down in the Act, a medical termination of pregnancy can take place. A court, therefore, does not have authority to determine whether a woman can or cannot terminate her pregnancy. Instead, a court can ensure that a woman who requests a medical termination of pregnancy under circumstances that satisfy the Act is provided with adequate medical care and services to fulfil her right to a termination of pregnancy.

Although the High Court found that Hallo Bi’s circumstances satisfied the MTP Act, the Court did not include guiding directions. Notwithstanding, HRLN plans to request a review of the petition so that this issue is taken up afresh and guiding directions are issued.

Download the full order here


Calcutta High Court proposes equal facilities for all prisoners #goodnews #prisoner

HT Correspondent, Hindustan Times
Kolkata, August 28, 2012

There is good news for the thousands of prisoners, under trials or convicts, in Bengal. In its landmark verdict the Calcutta High Court on August 8 held that every prisoner, irrespective of class, colour, creed and race, was also entitled to special amenities provided for the political prisoners under the West Bengal Correction Services Act 1992. In his 30-page verdict, justice KS Ahluwalia held that what the Act proposes to give to the political prisoners are basic amenities, which are necessary for dignified human living, to which all prisoners ought to be entitled.

“Therefore, all these amenities except a separate kitchen should be provided to all prisoners. A common kitchen having proper hygiene and infrastructure run by the prisoners should be available to all the prisoners, irrespective of any class to which a prisoner belongs. For distribution of food, the State cannot create classes. However, it may provide food considering the health of an inmate.

A weak or sick may require healthier or special diet. Common reading room having newspapers, magazines and other books at fixed hours should be available to all prisoners,” the judge suggested.

“A slight improvement in the living conditions in prisons will erode the classification. Therefore, in changing times, the state is called upon to look into the provisions of the Act with a new humanistic approach and explore the feasibility that the prisons guided by reformative and restorative policy provide basic amenities to all and there remains no need to assign nomenclature to the prisoners for providing better facilities to one class ousting the other,” the judge said.

Holding the classification of prisoners and providing different amenities, prima facie, unconstitutional, the judge said: “To grade prisoners according to their status is alien to the constitution. There can be no distinction of a rich or poor prisoner and political prisoner or other prisoner while distributing basic amenities, which are necessary for a dignified human life.

The state, if it so desires, may consider to dispense with the classification of the prisoners and strive to make prisons the model jails as an example for other states to follow,” the judge said.

The judge ended his verdict by quoting the words of Nelson Mandela, who fought relentlessly against apartheid and remained confined for 27 years, for guiding the vision of everyone for betterment of jails: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones”.

Purulia armsdrop convict and British national, Peter Bleach, who spent eight years in a city jail, welcomed the verdict. “This ruling will have far reaching effects. It will assist in the extradition of wanted foreigners to India because it will reassure foreign courts that Indian courts will indeed intervene and ensure justice and fair treatment in jail,” Bleach told HT from London.

The ruling came on a batch of petitions filed by advocate Subhasish Roy on behalf of seven alleged Maoists, including Chhatradhar Mahato, who have also been charged with waging of war against the state, seeking the status of political prisoner.

UK denies right-to-die legal challenge



BRITAIN ST. (Photo credit: marc falardeau)



MARIA CHENG | August 16, 2012 06:30 PM EST | AP



LONDON — Britain‘s High Court on Thursday rejected an attempt by a man who has locked-in syndrome to overturn the country’s euthanasia law by refusing to legally allow doctors to end his life.

Tony Nicklinson had a stroke in 2005 that left him unable to speak or move below his neck. He requires constant care and communicates mostly by blinking, although his mind has remained unaffected and his condition is not terminal.

In January, the 58-year-old asked the High Court to declare that any doctor who kills him with his consent will not be charged with murder.

The High Court ruled that challenges from Nicklinson and another man named only as Martin to allow others to help them die without being prosecuted were a matter for Parliament to decide.

Nicklinson said he was “devastated and heartbroken” and planned to appeal the decision.

“I am saddened that the law wants to condemn me to a life of increasing indignity and misery,” he said in a statement.

Martin, 47, also has locked-in syndrome and asked for the court to allow professionals to help him die either by withholding food and water or by helping him go to a clinic in Switzerland to die. His wife said she respects his wishes, but does not want to help kill him.

Locked-in syndrome is a rare neurological disorder where patients are completely paralyzed, and only able to blink. Patients are conscious and don’t have any intellectual problems, but they are unable to speak or move.

The judges wrote that they were both “tragic cases,” but said to allow euthanasia as a possible defense to murder “would usurp the proper role of Parliament.”

Nicklinson had argued that British law violated his right to “private and family life” as guaranteed by the European Convention on Human Rights, on the grounds that being able to choose how to die is a matter of personal autonomy. He has previously described his life as “a living nightmare.”

Legal experts weren’t surprised by the ruling.

“This is a really slippery case,” said Richard Huxtable, deputy director of the Ethics in Medicine department at Bristol University. “Although the courts have been willing to look at guidance around assisted suicide, this is about as far as they have been willing to go.

“The feeling seems to be that only Parliament could give adequate thought to what sort of law should be in place and the safeguards required.”

In Europe, only Belgium, Luxembourg and the Netherlands allow euthanasia. Switzerland allows assisted suicide and is the only country that helps foreigners die at a clinic near Zurich.

“It’s very clear courts are unwilling to make the radical shift in our understanding of murder by allowing euthanasia,” said Arthur Caplan, director of medical ethics at New York University’s Langone Medical Center.

“But they did leave a small door open for prosecutorial discretion,” he said, pointing out the judges acknowledged that the decision to prosecute people who helped others to die were not always straightforward.

Britain’s top prosecutor has previously said that people who help loved ones commit suicide won’t necessarily be charged with murder.

Caplan said the British cases were a major departure from past euthanasia debates because neither man is terminally ill.

“Most of the cases which triggered legislation in the past were about dying people and their quality of life,” he said. “We will see more of these discussions as people live longer and we decide what to do about those who are severely impaired.”

Nicklinson said he hoped the courts would grant him another hearing later this year. Experts said he could take his case to the Supreme Court or to the European Court of Human Rights in Strasbourg.


Rights activist Seema Azad to appeal conviction at High Court


By Abu Zafar 6/9/12, Newzfirst


NEW DELHI — Rights activists Seema Azad and her husband, Vishwa Vijay, who were Friday sentenced by a court in Allahabad, Uttar Pradesh, to life imprisonment for alleged seditious activities, will appeal their conviction at the high court.

“My sister and her husband have been convicted on the basis false and fabricated evidence,” Azad’s sister, Suman, told Newzfirst hours after Sessions Judge Anil Kumar announced his ruling. “We are going to appeal against the ruling.”
Allahabad Police had arrested the husband-wife duo on February 8, 2010 and tried under Unlawful Activities Prevention Act for alleged Maoist activities.
The prosecution cited as evidence a book the police allegedly found on the couple at the time of their arrest. The police claimed the book linked them to the outlawed Communist Party of India (Maoist).
The couple has denied the charge. The court denied them bail.

“How can you build palaces on land allotted for affordable housing” – Justice Dattu

PRESS RELEASE New Delhi, March 30

Hiranadani’s Special Leave Petition Dismissed by the Supreme Court upholding HC judgement.


“How can you build palaces on land allotted for affordable housing” – Justice Dattu


Today the Supreme Court Bench consisting of Justice H.L Dattu and Justice Chandramauli Kr. Prasad dismissed the SLPs filed by Niranjan Hiranandani of Hiranandani Gardens against the order passed by the Bombay High Court in a bunch of a Writ Petitions including one filed by Medha Patkar for National Alliance of People’s Movement & Others in 2008. While dismissing the Special Leave Petitions, the Court observed that the High Court is fully justified in holding that the development in ‘Pawai Area Development Scheme’ on 230 acres of land was meant for affordable houses i.e. for constructing tenements of 400 Sq. Ft and 800 Sq Ft. as per the Tripartite Agreement in which the State Government and MMRDA were parties alongwith the original landholders. The Power of Attorney Holder for the original land holders i.e. M/s Hiranandani violated with impunity the very public purpose behind the development scheme, on 230 acres of land which was allotted at a pittance i.e price of Re 1 per hectare (40 paisa per acre).


Today the Supreme Court, while dismissing the Petitions, observed that instead of constructing affordable houses, palatial buildings have been constructed which are meant only for those who possess ‘Bentley’ and ‘Ferrari’, when in Mumbai there is not a square inch of land and poor people’s hutments are seen on the road. How can the property which is acquired and leased out for a specific public purpose of ‘affordable housing’ by the authorities can be given to the father, mother and relatives leading to amalgamation, which is a complete eye wash. “What is happening in this Country?”, the Court remarked with anguish.


Have you constructed even one tenement as per the conditions in the Tripartite Agreement? Justice Chandramauli Kr Prasad quipped. The Court also observed that the High Court has remarked about collusion of the officials of the State as well as MMRDA with the developer and therefore, at this juncture when the High Court is seized of the matter, they will not interfere with the order passed by the High Court. The Court hearing Adv. Mukul Rohatgi and Gopal Subramaniam who vehemently argued in support of Hiranandani’s, dismissed the Special Leave Petitions. Shri Shekhar Naphade, Senior Advocate appearing for MMRDA said that his conscience does not allow him to keep quiet and that he would like to state in the Court that the officials of MMRDA were in clear collusion with the developers and that the entire development is in violation of Tripartite agreement. Adv Sanjay Parikh appeared for the Petitioner, Medha Patkar and Adv Ashish Mehta assisted him.

The Backdrop:

Land originally belonging to the indigenous people in Mumbai, was purchased by Verma, Sharma and others. Since the large chunk of this land in village Powai and Tirandaz was of a scale violating the Urban Land Ceiling Act then, it was acquired by the Bombay Metropoltan regional Development Authority( BMRDA) at a throwaway rate of 40p/ acre. Based on an official GR of 1986, exempting a developer from ceiling limit under ULCR Act in a scheme, but strictly for affordable housing. The tripartite agreement stipulated building of houses for low income group and middle class people, 50% with 40 sq mt (400 sq ft) area and rest 505 with 80 sq mt(800 sq ft). it is equivalent to 15% of FSI were to be handed over to State Government and other 15% of FSI of houses to be offered to Central Government agencies. A full fledged infrastructure with water supply, drainage etc and road was to be builds as well as open spaces were to be reserved and handed over to MCGM. However Hiranandanis built luxurious flats worth crores each, shopping malls, commercial complexes, business centre’s etc but not one affordable housing tenements. The cases were filed in Mumbai HC by some local residents and by NAPM through Medha Patkar claiming total violation of the agreement and breach of all rules and preconditions. The MMRDA too investigated the matter issuing notices it Hiranandanis brought out of report in 2008 recommending fine of worth Rs 2,000 crores and resumption of lands with MMRDA. However, the State got resorted to arbitration which arbitrarily reduces the fine to a pittance of 3 crores. This was questioned in the High Court and the High Court vindicated the Petitioner’s challenge. The High Court directed that the MMRDA , Petitioner and developer should sit together and file a report with details of property constructed and buildings, infrastructure open space etc. the High Court has directed the MMRDA to submit Report on April 12, 2012


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