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


, TNN | May 3, 2013,

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

 

#India-For a moratorium on death sentence


V. VENKATESAN, Dec 10, The Hindu

There is a need to identify cases in which the courts might have erred in applying the Bachan Singh principle that limits the imposition of the death penalty

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh (1980) is the source of contemporary death penalty jurisprudence in India. Its major contribution was to limit the imposition of death penalty to the rarest of rare crimes, and for laying down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal.

However, the application of its principles by the courts to various cases before them has been very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach.

Matter of concern

It is a matter of concern when this criticism emanates from the judiciary itself, as it smacks of its helplessness. The frequency of such criticism from the judiciary may appear to be exercises in genuine introspection but to the litigants, the very credibility of the court’s death penalty decisions is at stake.

The execution of death row prisoners in India might have come to a near standstill, with only one in the last decade, and another recently. Yet, the frequency of confirmation of death sentences by the Supreme Court has created a large pool of death row prisoners in the country, who may be living between life and death constantly for many years, till the executive decides on their mercy petitions. When the Supreme Court time and again admits that many of these prisoners might have been sentenced on the basis of erroneous legal precedents set by itself, the executive cannot pretend to be unconcerned.

The latest admission of such error is to be found in the judgment delivered by Justice Madan B. Lokur for himself and on behalf of Justice K.S. Radhakrishnan, in Sangeet & ANR vs. State of Haryana, on November 20.

The genesis of Sangeet can be traced to another Supreme Court judgment delivered in 2009. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, a two-judge Bench admitted to error in the sentencing to death of seven convicts by the previous benches of the court. Similar error was immediately noticed in the sentencing to death of six more convicts, after the delivery of judgment in Bariyar, taking their total to 13.

The error was the reliance by the court on a legal precedent, which Bariyar declared as per incuriam. The term, per incuriam, refers to a decision which a subsequent court finds to be a mistake, occurring through ignorance of a relevant authority, and therefore not a binding precedent.

Erroneous precedent

The erroneous legal precedent was Ravji v. State of Rajasthan, decided in 1996 by a two-judge Bench. In Ravji, the court had found only characteristics relating to the crime, to the exclusion of the criminal, as relevant to sentencing. Bariyar noted with disapproval that the court had relied on Ravji as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent, in six cases. This was inconsistent with the Bachan Singh ruling by the five-Judge Constitution Bench in 1980, which had shifted the focus of sentencing from the “crime” to the “crime and the criminal”.

In Sangeet, the Radhakrishnan-Lokur Bench has continued the judicial scrutiny started by Bariyar of post-Bachan Singh death penalty cases, to see if they have complied with the requirements of the law. Thanks to this scrutiny, five other cases which resulted in the wrongful sentencing to death of six more convicts have come to light. They are Shivu, Jadeswamy, B.A. Umesh, Rajendra Pralhadrao Wasnik, Mohd. Mannan, and Sushil Murmu. The former President, Pratibha Patil, has already commuted Murmu’s death sentence to life imprisonment.

Back to 13

Five of the 13 convicts identified in and after Bariyar have already got their sentences commuted to life imprisonment by competent authorities. With Sangeet pointing to five more such convicts, the total number of prisoners to be taken off the death row is back to 13 again.

Unlike Bariyar, however, Sangeet has not declared the five erroneous judgments per incuriam. But the result of the scrutiny in both the cases is the same: no future Bench can cite these cases on a point of law, without inviting the Ravji taint. The recent appeal by 14 former judges to the President to spare the lives of the eight convicts, who have been wrongly sentenced to death by the Supreme Court must, therefore, apply equally to these five convicts identified in Sangeet.

It is not unusual to come across observations by the courts while justifying the death sentence, that there is extreme indignation of the community over the nature of the crime, and that collective conscience of the community is petrified by the extremely brutal, grotesque, diabolical, revolting or dastardly manner of the commission of the crime. After making these observations, it is easy for the courts to jump to the conclusion that the criminal is a menace to society and shall continue to be so and he cannot be reformed.

These are empty clichés repeated ad nauseam without any basis. Sangeet, therefore, gently reminds the courts about the need to back such observations with some material. The nature of the crime alone cannot form such material, it has held.

Sangeet has pointed out a grave infirmity with regard to the sentencing of Umesh and Sushil Murmu, to death. The Supreme Court found both Umesh and Sushil Murmu incapable of rehabilitation and, therefore, deserving of the death sentence because of their alleged involvement in crimes other than those for which they were convicted — turning upside down the doctrine of presumption of innocence, the cornerstone of our criminal jurisprudence.

Bachan Singh, delivered by a five-judge Constitution Bench, clearly discarded the proposition that the court must balance aggravating and mitigating circumstances through a balance sheet theory. The theory requires weighing aggravating factors of the crime against the mitigating factors of the criminal. In Machhi Singh (1983), however, a three-judge Supreme Court Bench, brought the balance sheet theory back, and gave it legitimacy. The theory has held the field post-Machhi Singh.

Sangeet has sought to revive the Bachan Singh dictum that the aggravating circumstances of the crime and the mitigating circumstances of the criminal are completely distinct and different elements, and cannot be compared with one another. Therefore, it has held that a balance sheet cannot be drawn up of two distinct and different constituents of an incident, as required by Machhi Singh.

Sangeet holds the balance sheet theory responsible for much of the arbitrariness in judging whether a case falls under the rarest of rare category, a test enunciated in Bachan Singh. It also endorses the proposition that by standardising and categorising crimes, Machhi Singh considerably enlarged the scope for imposing the death penalty, that was greatly restricted by Bachan Singh.

The Radhakrishnan-Lokur Bench, being a two-judge Bench, could not have overruled Machhi Singh, despite its obvious flaws, and the source of much of the inconsistency in our death penalty jurisprudence. A three-judge bench in Swami Shraddhanand II in 2008 had raised similar doubts about Machhi Singh; but the courts continue to invoke it.

In its judgment delivered on August 29, among other things, the Supreme Court relied on the flawedMachhi Singh for its reasoning, and used the balance sheet theory, arraigned by Sangeet, to sentence Ajmal Kasab.

The serious issues raised in Sangeet are incapable of being resolved by the judiciary itself. Any delay in their resolution will inexorably create more death row convicts, than what is justified legally. There is indeed a case for the government to immediately announce a moratorium on executing death sentences and set up a Commission to identify the cases in which any of the courts — trial courts, high courts and the Supreme Court — might have erred in correctly applying the Bachan Singh principles, while sentencing. The findings of the Commission will be useful for deciding the future of death sentence in the country.

#India-First commutation of death sentence by President Pranab Mukherji #goodnews


English: Minister of Finance Pranab Mukherjee ...

English: Minister of Finance Pranab Mukherjee in the Plenary Session Post-Crisis Economic Order: How Can Free Market and control be Balanced? Participants captured during the World Economic Forum’s India Economic Summit 2009 held in New Delhi, 8-10 November 2009. (Photo credit: Wikipedia)

 

NEW DELHI, December 3, 2012

 

V. Venkatesan

 

 

 Atbir, lodged in Tihar Jail, New Delhi, is the first death-row convict whose sentence has been commuted by President Pranab Mukherjee. Mr. Mukherjee passed the order on November 15. Atbir is one of the 16 death-row convicts whose mercy petition, Pratibha Patil, Mr. Mukherjee’s predecessor, left undecided while completing her tenure.

Atbir was convicted and sentenced to death by a sessions court in 2004 for the murder of his step mother, step sister and step brother in 1996 over a property dispute. The High Court confirmed the sentence in 2006 and the Supreme Court dismissed his appeal against the sentence in 2010. The Ministry of Home Affairs (MHA) recommended commutation as the crime had a socio-economic basis.

According to the Rashtrapati Bhavan website, Mr. Mukherjee now has only one pending mercy petition to be decided by him.

The remaining petitions appear to have been sent back to the MHA to facilitate fresh submission of recommendations.

 

 

Pratibha Patil to return 155 artifacts to Rashtrapati Bhavan by 15 June 2013, reveals RTI reply


VINITA DESHMUKH | 17/09/2012

To a RTI query by this writer asking about the list of gift items loaned specifically to Pratibha Patil along with the evaluated price of each item, Rashtrapati Bhavan says information not necessary as it is a ‘temporary’ arrangement

The Rashtrapati Bhavan has officially admitted through a RTI (Right to Information) reply to this writer that “An MoU was signed on 15th June 2012 between Rashtrapati Bhavan and the Vidya Bharti Shaikshnik Mandal, Amravati, for display of 155 artifacts/mementos on a purely temporary basis, which in any case, cease to be operative with effect from 15th June 2013 and all the artifacts presently on loan shall be returned to the Rashtrapati Bhavan Museum thereafter” but refuses to divulge detailed information on the list of artifacts transferred to Ms Patil’s museum.

The Central Public Information Officer (CPIO) of the President’s Secretariat takes this ‘temporary’ arrangement as an excuse to not provide the list of artifacts given to Ms Patil to display it in her museum in her hometown, Amravati, along with their individual costs and countries that they were gifted from.

The RTI application filed by me on 3 August 2012, specifically asked the PIO of the President’s Secretariat, “List of gift items loaned specifically to Ms Pratibha Patil along with the evaluated price of each item; from which country did each gift item come from; what was the purpose of her visit when she received each of the gift item.” The reply is “do not arise in view of the answer at (3) above” (which is she would be returning artifacts by 15 June 2013 as the agreement would cease by then.

The RTI reply interestingly suggests that it was President Abdul Kalam who started the trend of moving out gifts received in the capacity of being President of India. The CPIO Saurabh Vjay states in his reply dated 6 September 2012, “No such requests have been made by any former President of India. It is, however, stated that in the past, 36 artifacts were handed over during the Presidency of Dr APJ Abdul Kalam for being displayed in the Brahmos Centre, New Delhi.” This reply came to the writer’s query under RTI seeking “copies of official requests made by Presidents of India for loaning of gifts from 1990 onwards. Provide copies of all such correspondence within the President of India office as well as between President of India office and the relevant district/city authority where the President of India may have resided or the place where she/he wants to display the loaned gift items, form 1990 onwards.”

The RTI reply also states that “no such rules and regulations are available for loaning of gift items received by the President of India. This was in reply to my query, “Copies of Rules/GRs/amendments/correspondence for rules and amended rules regarding gift articles and souvenirs which are received by Presidents of India from other countries and within the country; Copy of rules and regulations for ‘loaning’ official gifts received by President of India to presidents on their retirement or loaned to any other organisation.”

To the query, “How many gift items in total does the ‘Tosha Khana’ of the President’s office have at the moment and what is the total amount in value?” CPIO Saurabh Vijay states in his reply that “as per our records there are about 2,500 gifts in ‘Tosha Khana’ of the President’s Secretariat and as regards the value of these items, no such records are available in the Art section.”  This is indeed shocking for, as per the ministry of home affairs, any contribution in the form of gifts received by President of India or other dignitaries must be valued within 30 days of receipt of gift.

It may be recalled that a museum is being specially set up in Pratibha Patil’s hometown by the family trust, Vidya Bharti Shaikshnik Mandal, run by her politician-son Rajendra Shekhawat.

The writer is filing a first appeal to the President’s Secretariat since the information received is inadequate.

Read the previous article here: Pratibha Patil’s Museum: Gifts received by VVIPs from foreign countries can be purchased by them but can they be loaned?

(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet – The Inspiring Story of A Braveheart – Ashok Kamte” with Vinita Kamte. She can be reached atvinitapune@gmail.com.)

Nine death penalties wrongly imposed: Ex-judges to President



Manoj Mitta, TNN | A

 

The miscarriage of justice has prompted 14 retired judges of SC and HCs across the country to appeal to President to turn 9 death penalties into life sentence.

NEW DELHI: They are on death row even after the Supreme Court admitted — not once but thrice — that the decisions awarding death sentences had been rendered per incurium (in ignorance). The miscarriage of justice has prompted 14 retired judges of the SC and high courts across the country to appeal to President Pranab Mukherjee to turn the capital punishment imposed on nine persons into life sentence.

Led by former SC judge P B Sawant, the 14 retired judges signed up separate letters to the President pointing out that the death sentences given to these nine persons by various two-judge benches of the SC were “contrary to the binding dictum of rarest of rare” propounded in the 1980 five-judge bench verdict in Bachan Singh vs State of Punjab.

The Bachan Singh prescription of weighing the circumstances relating to “the crime as well as the criminal” before pronouncing a death penalty was disregarded for the first time in 1995 in Ravji Ram Chandra vs State of Rajasthan where a two-judge bench ruled that it was “the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.”

The Ravji approach of focusing on the aggravating circumstances (namely, the crime) at the expense of the mitigating circumstances (namely, the criminal) served as a precedent to at least six judgments, leading to the hanging of Ravji in 1996 and Surja Ram the following year. The erosion of the rarest-of-rare doctrine was finally decried by the SC in 2009 in Santosh Bariyar vs State of Maharashtra, followed by two more such correctives in 2010 and 2011. Earlier this year, the then President, Pratibha Patil, accepting the then home minister P Chidamabaram’s recommendation, commuted the death sentence to life in two of the seven cases, which had been guided by the Ravji verdict rather than the Bachan Singh verdict.

Responding to a campaign launched by human rights lawyer Yug Mohit Chaudhry, the 14 retired judges, who include five former chief justices of HCs, wrote to the President to commute the capital punishment in the remaining five cases involving nine persons. The appeals from the retired judges were sent to the President on Friday. With the change of guard in the home ministry, all pending mercy petitions from death penalty convicts are due to be considered afresh by the new home, Sushilkumar Shinde.

In their appeals, the retired judges took pains to clarify that none of the cases in question involved crimes against the state. Further, the concerns raised in their appeals have nothing to do with the larger debate about the desirability of retaining the death sentence.

“Rather they pertain to the administration of the death penalty in a conscientious, fair and just manner,” the ex-judges said. “Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system. This matter goes to the very heart of our Constitution because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court.” Those who signed these unprecedented appeals also include Justices A P Shah, B A Khan, Bilal Nazki, P K Misra, S N Bhargava, B H Marlapalle, B G Kolse-Patil, Hosbet Suresh, Prabha Sridevan, K P Sivasubramaniam, Ranvir Sahai Verma, P C Jain and Panachand Jain.

 

 

Pardoning President – commutation of 30 death sentecnes


By Syed Nazakat and Vijaya Pushkarna
Story Dated: Monday, June 11, 2012

Commutation of 30 death sentences

Guns for her roses: Pratibha Patil

When President Pratibha Patil vacates the Rashtrapati Bhavan on July 25, she would have the dubious distinction of having commuted the highest number of death sentences to life imprisonment. During her tenure, she showed clemency to 30 convicts, condemned prisoners who had killed 60 people, including 22 women and children.
Among those granted pardon include Molai Ram and Santosh Yadav, who in 1996 had gangraped and murdered the 10-year-old daughter of a jailer on the premises of a prison in Madhya Pradesh where they were inmates; Dharmender Singh and Narendra Yadav of Uttar Pradesh, who had killed a couple, their two sons and 15-year-old daughter, whom they had earlier tried to rape; Piara Singh of Punjab and his three sons, who had massacred 17 persons of a wedding party on a personal rivalry; Sushil Murmu of Jharkhand, who had sacrificed a nine-year-old boy out of superstition; and Satish, who had raped and murdered a five-year-old girl in Uttar Pradesh in 2001.
For many people, the presidential pardons have come as a shock. “In many cases, the victims were raped, sexually assaulted and tortured before being murdered,” said a schoolteacher. “Pardoning them sends a wrong, sad message.”
Patil’s predecessors, A.P.J. Abdul Kalam and K.R. Narayanan, had granted clemency in only one case each. Patil’s extraordinary generosity has led to a fresh debate on death penalty in India. The focus is now on what Patil has not done—she has not decided on the mercy petitions of Afzal Guru, convicted in the 2001 Parliament attack case; Khalistan separatist Devinder Singh Bhullar, who tried to kill Youth Congress president Maninder Singh Bitta in 1993; and Balwant Singh Rajoana, who assassinated Punjab chief minister Beant Singh in 1995.
The BJP, the main opposition party in Parliament, has been criticising the Centre for its ambivalent stance on the death penalty debate. BJP leader Prakash Javadekar says “those who have acted against the country” should be hanged immediately. When Home Minister P. Chidambaram was criticised for the delay in executing Ajmal Kasab, who was convicted in the 2008 Mumbai attacks case, he had told Parliament: “We have to decide as a nation whether we want to follow the rule of law or not.”
Patil, in her zeal to grant presidential pardons, appears to have squandered the chance to send out a clear signal on the issue. During her term, she rejected three mercy petitions and commuted sentences in 19 cases, involving 30 convicts. She, however, has not taken a call on 10 mercy petitions, including that of Afzal Guru.
Realising that the pardons could be politically explosive, Rashtrapati Bhavan officials are pulling out all the stops to give them a positive spin. Presidential spokesperson Archana Dutta told THE WEEK, “The President has adhered to the rule book while dealing with mercy petitions. It is incorrect to say that it is on account of her personal belief [against death penalty] that she has commuted these death sentences.”
Many people, however, disagree. “So many mercy pardons may send the wrong signal about our legal procedure,” said senior advocate Gopal Jain. “It is not clear what parameters she used to commute the death sentence in 19 cases and reject the other three.”
Said a senior politician: “Here is a President whose stint at the Rashtrapati Bhavan has been daubed with controversy on many fronts, including the recent land allocation issue. Her office is working overtime to contain bad press. The President could have absolved herself of her rather lacklustre tenure by taking decisive action on an issue that concerns the security of the people of this country. But, instead, she appears to have chosen to tread a safe, political path.”
Human rights and pro-life lobbies view the presidential pardons as an indication of the way India is moving in the larger debate favouring abolition of capital punishment. Although India has not abolished capital punishment, it has rarely been carried out after the 1983 Supreme Court ruling that death penalty should be imposed only in “the rarest of rare cases”. Since 1995, only one execution, that of Dhananjoy Chatterjee in August 2004, has taken place. Dhananjoy was convicted of raping and murdering a schoolgirl in 1990.
Under the law, the death penalty can be imposed for murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government, abetting mutiny by a member of the armed forces. Recently, special courts extended the penalty to cases of terrorism and the Supreme Court has recommended that it be extended to those found guilty of committing honour killings and to cops involved in brutal fake encounter killings.
Death penalty, however, has been a sensitive issue. In Tamil Naidu, widespread public rallies were conducted to seek clemency for the Rajiv Gandhi killers. A person even burned herself to death to protest the imminent hangings. Local politicians insisted that the hangings would be a “betrayal of the Tamils”, and would provoke popular fury.
A similar kind of fury was witnessed in Punjab when the Shiromani Gurdwara Parbandhak Committee, which functions as a parliament of Sikhs, demanded that the state 
government fight to save Balwant Singh Rajoana, the assassin of Beant Singh. The Akal Takht, which is the highest temporal seat of Sikhs, has conferred the title of Zinda Shaheed, or living martyr, on him. In Kashmir, Afzal Guru’s death sentence has been an emotive issue. Few doubt Afzal’s involvement in the 2001 Parliament attack. But serious questions remain over the investigation and trial, carried out under the now-defunct Prevention of Terrorist Activities Act.

With widespread instances of custodial abuse, legal experts have been campaigning for the abolition of the death penalty. They argue that there is no empirical evidence to suggest that the death sentence works as a deterrent. The delays in carrying out the executions have also been pointed out. Said B.S. Bilowria, a Supreme Court lawyer: “The long delays in executing the death sentences are extra punishment. It is in addition to the punishment of death and, therefore, it becomes unconstitutional. You cannot give a person double punishment by first locking him in a prison cell for years and then hanging him after a decade or so.”

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