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Updated: July 6, 2012 00:31 IST

Take these men off death row

Prabha Sridevan
Comment (18)   ·   print   ·   T  T  

In no fewer than 13 cases, the Supreme Court has held the death sentence to have been wrongly given. The mistakes must be corrected before it’s too late.

With a dark and chilling feeling we recently read about the wrong Carlos who was executed in the United States for a crime he did not commit. An extraordinary investigation by a Columbia law professor and his team led to the revelation that due to a series of mistakes from investigation to trial, Texas executed Carlos De Luna for a crime committed by Carlos Hernandez. But it came too late for poor Carlos De Luna.

What happens if a death penalty is imposed by mistake? If the “mistakes” are still alive unlike poor Carlos, what should be done, especially when the final court of appeal has pronounced the judgments in error?

The Carlos case was one of mistaken identity. We have in India 13 mistakes of a different kind. What do Dayanidhi Bisoi, Saibanna, Ankush Maruti Shinde, Ambadas Laxman Shinde, Bapu Appa Shinde, Raju Mhasu Shinde, Rajya Appa Shinde, Surya @Suresh Shinde, Sattan, Upendra, Shivaji @ Dadya Shanker Alhat, Bantu and Mohan Anna Chavan have in common? They are all men waiting to be executed, 13 of them, a horribly ominous number.

The judgments by which the Supreme Court had sentenced them to death were declared “per incuriam” by subsequent Benches of the Supreme Court. The words per incuriam mean by carelessness or ignoring the statute or the law. But they will go to the gallows, in the name of the people, because of admittedly erroneous judgments, unless their sentences are commuted by the President.

Extraordinary admission

It was in 2009 that the Supreme Court made this extraordinary admission of error, but till date nothing has been done to correct the error. This is not about the correctness, or constitutionality or morality of capital punishment. This is about persons being sent to death on the basis of flawed judgments. These 13 men are not men of moment or men who you will remember, they are men unremembered and unsung and abandoned. But that does not mean they can be wrongly executed. In fact it is that much more important that we, governed by the Rule of Law, ensure that their fundamental rights and their human rights are not violated.

To understand why the judgments were declared erroneous one needs to go back to 1980, when the Constitution Bench of our Supreme Court in Bachan Singh vs State of Punjab, dealt in detail with the arguments for abolition and retention of the death penalty. It explained why there must be special and compelling reasons for sentencing a person to death: “The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.”

The Court held: “While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal.” And “in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender, also.” That the circumstances pertaining to the criminal must be given due weight is reiterated throughout the judgment.

Then in 1996 came Ravji @ Ramachandra vs State of Rajasthan which held that “it is the nature and gravity of the crime but not the criminal which are germane for consideration.” This was contrary to the binding dictum in Bachan Singh’s case and hence per incuriam. Judgments that are per incuriam have no precedentiary value and yet the Supreme Court followed Ravji, and imposed the death penalty in subsequent judgments.

In 2009, in Santosh Kumar Bariyar vs State of Maharashtra, the Supreme Court noted the error and admitted that, “We are not oblivious that the Ravji case has been followed in at least six decisions of this Court in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriamShivaji v. State of Maharashtra, Mohan Anna Chavan v. State of Maharashtra, Bantu v. State of U.P., Surja Ram v. State of Rajasthan, Dayanidhi Bisoi v. State of Orissa and State of U.P. v. Sattan are the decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent.”

In addition, Bariyar declared that Saibanna vs State of Karnataka was also decided per incuriam. In Bariyar, the Supreme Court insisted that there be a “strict channelling of discretion” while deciding whether to impose the death penalty. It suggested a sentencing procedure and said that, “it is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14. …. Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of “special reasons”; if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions.”

Again, in 2010 in Dilip Tiwari vs State of Maharashtra, the Supreme Court referred to Bariyar’s case and held that though the crime warranted public abhorrence, “...We would, thus, follow Bachan Singh case and the principles therein rather than following the … Ravji case.” But Ravji Rao and Surja Ram were executed — on May 4, 1996 and April 7, 1997 respectively — pursuant to these flawed judgments. There can be no graver miscarriage of justice than this. The Supreme Court’s admission of error was too late for them. They were hanged, not because of mistaken identity as in Carlos’ case, but because of erroneous judgments.

Article 21 of the Constitution of India forbids the deprivation of life except according to the procedure established by law. Will the execution of the 13 men, abandoned to die by mistake, be in accordance with law, when the judgments are per incuriam? The law requires that the accused be heard before deciding on the sentence. It is not meant to be an empty formality. Why hear the accused before imposing the sentence if the circumstances of the offender are not germane to the decision making process? The Bachan Singh judgment has laid down the law clearly and the position was reiterated in Bariyar’s case where there is a candid admission that the cases of these 13 men have been wrongly decided.

Challenge to credibility

The credibility of our criminal justice system and the constitutional promise of equality before law will suffer a terrible blow if they are executed despite erroneous judgments. This article does not raise the larger question of retention or abolition of death penalty. It only argues for the administration of the death penalty in accordance with law.

The Supreme Court, even in India where the judges do not sit en banque, speaks as one Court. The voices we hear are not the voices of the different judges; what we hear is the Voice of the Court. Here the Supreme Court has acknowledged and named the judgments which were “in error”. Yet, nothing has been done in rectification.

The crimes committed by the 13 men must have been so abhorrent to the Supreme Court that the rarest of rare doctrine was invoked. But the law says that before the death penalty is imposed, the Court shall consider the facts relating to the offender. If they were not considered it was a mistake, but not an ordinary mistake. The authority of the state to carry out the sentences imposed by courts cannot extend to executing admitted errors. If the mistake is corrected by Presidential pardon, the 13 men will not go free. They still have to serve their sentences for the rest of their lives. They will not be pardoned. But we shall not have sent them to the gallows, by mistake. There is no time to lose, for those 13 men and for us too.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

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Some of the comments appear too cynical. It is as though being in death row is quite comfortable, that people are responding! Has our mercy for sufferers disappeared totally? Innocent people are butchered by law, whatever may be the reason- the failure of the system, wrong investigation, faulty award of punishment. It is reason enough to abolish death penalty altogether,that it is likely to be inflicted on innocent victims. A civilized society should not retain such inhuman punishments.Life, once taken away, can never be replaced.

from:  K.Ramachandran.
Posted on: Jul 8, 2012 at 11:58 IST

This is in reference to Justice Prabha Sridevan's lead article in 'The
Hindu' on 6th July-'Take These Men Death Row Now'. The ex judge has
made a very correct appeal. Crime and Punishment are ages old issues
and the development of society and culture has always been towards
more enlightened approach of hitting at the roots or crime, which are
in exploitative and oppressive societies, rather than removing the
branches of trees, bound to reemerge. From Dostoevsky's classic novel-
"Crime and Punishment' to Mahatma Gandhi, every humanist has pleaded
against death penalty and more than 150 countries have already taken
it off their law books.There could be no worse cruel crime than what
had been committed in Norway in July 2011 by racist minded Breivik,
killing more than 70 innocent children, still no one in Europe is
demanding death penalty for the criminal, which could be imprisonment
till death. Portugal agreed to hand over a criminal to India only on
the condition that he can not be imprisoned more than 25 years, even
if he is guilty of most heinous crimes, for which other Indians can be
easily hanged. Nobody in Europe seeks the blood of Breivik as in India
is sought the blood of Kasab and Afzal.Better would be to change the
law simply from 'To be hanged till death' with 'To be imprisoned till
death', giving opportunity to make the correction as advised by
learned Justice Prabha Sridevan,if ever it is found out that
punishment was meted out wrongly, even if it could be a single case
out of thousands. As rightly suggested non state actors can be law
breakers-criminals-revenge seekers, but no modern liberal state,
supposedly based on Gandhian principles can be a lawless revengeful
state!

from:  Chaman Lal
Posted on: Jul 8, 2012 at 11:18 IST

It is shocking to learn that even if SC finds its earlier judgement
“per incuriam” ,
SC can not revise the death sentence.
The powers of review and revision of sentence by the subsequent
benches might have been well thought out and rules and procedures would
have been framed guarding the principles of natural justice.Still, it
is simply shocking, that with a learned bench considering the death
sentence was in error, a citizen can be executed.
It is not also clear as to how and why the subsequent benches
considered these cases when they do not have power to modify the
earlier death sentence.If there is a provision for review, it appears
to the layman's logic that there should be a provision for revision of
sentence.
It is not clear whether these unfortunate 13 cases were put up or not
put up for presidential pardon as we learn a number of cases of death
sentence were recently pardoned by President including a case of a
prisoner who died some time back.

from:  Krishnan
Posted on: Jul 7, 2012 at 21:47 IST

How is the death row relevant in India? In the last 20 years, only two
people have been executed. In fact death row convicts in India get three
meals a day, water for a bath and do some paid work everyday. Also,
their expected life span is longer than average Indians. Maybe the
Government should put all poor Indians on death row, so they can live
better.

from:  James Gurung
Posted on: Jul 7, 2012 at 20:48 IST

The above article says,'The death sentance should take into consideration the "circumstances" of the criminal under which he comitted the crime'.Here the word "circumsatances" is vague.Author hasn't mentioned that, what should be the criteria to decide the magnitude of "circumstances" around a criminal and under what "circumstances" he/she shouldn't be given a 'death penalty'.

from:  Rohit
Posted on: Jul 7, 2012 at 00:13 IST

Before delivering death punishment a balance sheet of aggravating and
mitigating circumstances has to be prepared i.e looking into the
circumstances of crime as well as criminal.The 13 cases cited above are
not the cases of mistaken identities as was the case of Carlos. Infact
these are cases where the court followed the wrong approach set out in
Ravji case and fortunately they have not yet executed and can be
corrected either by the home ministry or the President.

from:  vinay
Posted on: Jul 6, 2012 at 22:27 IST

The cases show that how the procedure boundedness of bureaucracy has caused irrational delay in meeting out justice to 13 human beings.It's frustrating to watch bureaucracy crawl at snail's pace and scant regard for human life and its all pervasive apathy.Their Human dignity has been compromised, social standing degraded , livelihood destroyed. It would be very laudable and praiseworthy of the home ministry if it completes the humungous task of clearing these 13 files besides saving president's office from humiliations.

from:  jayant
Posted on: Jul 6, 2012 at 16:05 IST

It's decision made by intellectual human itself but decision being more compulsive based on level of crime. Chances of error are always there. To avoid this only concept we can bring rather than sending accused to gallows, come up some severe punishment which at least make them alive. Later correction of error can save particular.

from:  chandan mishra
Posted on: Jul 6, 2012 at 16:00 IST

Great insight and an opportunity to correct our Criminal Administration System. Hope Supreme Court takes the view expressed by the former High Court Judge and corrects the flaws of admitted errors in the Judicial System.

from:  Narasimhan
Posted on: Jul 6, 2012 at 14:18 IST

Even if a Supreme Court order is declared to be incorrect, it does not
apply to that set of facts.
The problem is not with death penalty but the system by which it is
applied in India. The judicial standards are really vague. The US has
very good standards for death penalty and it works better than what we
have here. It must be noted that these persons are not innocent. These
13 persons are just bad governance deaths. I think more than 13 person
in India die due to bad governance every day-
1. Poor or absent signalling on highways and trains.
2. Mismanagement in Government Hospitals
3. Corruption in various essential services.
4. Non delivery of services and lack of law and order.
5. Innocents in crossfire or encounters.

The Supreme Court is only killing 13 persons in over two decades. This
is probably one of the lowest deaths directly attributable to any
branch of the government. I think it is better to put these deaths in
perspective.

from:  Shubho Roy
Posted on: Jul 6, 2012 at 13:45 IST

While it is laudable that the author has shown due compassion to right to life of some of those on death row, thus, perhaps giving another side of the picture, I do find it a tad unconvincing, as the piece has not thrown light on the nature of some of the crimes. Yes, I agree, that the subsequent benches of the Supreme Court might have raised objections to the sentencing earlier, but for the public, at large, it would be difficult to understand why the benches thought so, unless the nature of the crimes are mentioned. Of course, the public do not have the right to pass judgements on the fate of convicts, as it is only the courts which have, but still, merely from the point of view of a common reader of this article, the author would have done well to shed some light on what these convicts had done, so that he or she could have an opinion.

from:  Balagopal P. Menon
Posted on: Jul 6, 2012 at 13:02 IST

There are many instances of prisoners serving life imprisonment getting their sentence cut due to good behavior.Normally they serve 14 years and then go free.What is your say on it?What will you do to make it sure that it doesn't happen after they get clemency?

from:  Rahul
Posted on: Jul 6, 2012 at 11:28 IST

A good article to bring out the discrepancies our judicial system is
marred with. Need of the hour for the Supreme Court is to come out with
a unanimous stand over the issue which has gathered a lot of attention
in the present time

from:  Gaurav Tiwari
Posted on: Jul 6, 2012 at 11:22 IST

A sad fact about the current state of affairs in our country is that an objective and correct solution to such situations rarely arises sans populism.Only when such a horrendous situation makes the headlines and is broadcasted wildly on the so called news channels does the polity take notice.
Even the highest executive authority i.e. the President only favours to hand out appeals in case publicity and acclaim follow.
This is where our country and its leaders have landed currently

from:  Miteshwar Singh
Posted on: Jul 6, 2012 at 10:50 IST

The Law of awarding "Death Sentence" should be done away. Who are we to take away the life when we cannot give one and has death solved any problem. The Capital Punishment should be life term in total isolation with hard labour. Let such grusome crimes be punished but not with Death Sentence.
Moreover, it is often that death sentence keep on lingering and in the end President's pardon is granted for various reason.
A matured society should do away with "Death Sentence".

from:  Jayant
Posted on: Jul 6, 2012 at 10:12 IST

For the kind information of the author, 13 is not considered a horribly omnious number in Indian tradition. It's the western society that considers it a bad luck.

from:  Rahul
Posted on: Jul 6, 2012 at 09:13 IST

By the same token, we must also ensure that genuine death penalty cases are actually carried out and not given clemency. Our legal system is truly weird. The courts do their best to give justice to the murderer's victims' relatives but the Home Ministry turns this on its head and recommends clemency to the President who rubber stamps it. Why therefore should we waste the courts' time besides insulting our judges' professional acumen? Let all murder cases be directly dealt with by the Home Ministry. Our problem is, we place populism in all its configurations over everything else even if it is hugely unfair. We have of late commuted the death sentence of more than 30 brutal murderers in order to gain cheap popularity.

from:  JK Dutt
Posted on: Jul 6, 2012 at 09:07 IST

Life is precious. Thank you The Hindu for publishing this. Hope that President will act.

from:  Kumar
Posted on: Jul 6, 2012 at 01:18 IST
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