Tag: Death Penalty Procedure by Lubhyathi and Nishanth

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Human Rights Litigation

The High Court as trial court in death penalty confirmation proceedings

DeathPenaltyProcedure_Lubhyathi_Nishant_Amrutanshu_DPLC

Is a death sentence rendered by a sessions court final? Are there any checks on the powers of a sessions court over such an important decision? Can the High Court call new evidence in a death penalty proceeding? This note is an attempt for more clarity on these questions. The Code of Criminal Procedure, 1973 (“Code”) under Section 28(2), directs that a death sentence can be passed only by a sessions judge or an additional sessions judge. Further, the Code ensures that a sentence of death passed by a court of sessions (comprising either the Sessions or the Additional Sessions Judge) shall be subject to confirmation proceedings before the High Court exercising jurisdiction over it. Therefore, it is safe to conclude that the death sentence rendered by a sessions court is not final and is subject to the automatic supervision of the relevant High Court.

Sections 366 to 371 of the Code outline the confirmation proceedings before the High Court. In Bachan Singh (1980), the Apex Court noted that these provisions ensure that “the entire evidential material bearing on the innocence as[or] guilt of the accused and the question of sentence must be scrutinised with utmost caution and care by a superior court” considering that the outcome of the case would determine the life of an individual. It is interesting to note that similar confirmation provisions were also found in the old criminal procedure code of 1898 from Sections 374 to 380.

The confirmation process

Once the Sessions Court passes the death sentence, it is bound to refer the proceedings of the case to the High Court under Section 366(1) of the Code. Under Section 366(2) of the Code, a sentence of death cannot be executed unless it is confirmed by the High Court. As opposed to the 1898 Criminal Code, the 1973 Code includes a provision that authorises the Sessions Court to commit the convicted person to judicial custody (that is, jail). The Supreme Court has clarified in Sunil Batra (1979) that this custody cannot be considered equivalent to an imprisonment. The logic behind the provision is probably that the incentive to evade the legal process for a convicted person (sentenced to death by a sessions court) is very high and therefore the provisions seeks to address scenarios wherein the convict is not available for execution of the sentence.

It has been held in a catena of cases, including in State of Maharsahtra v. Sindhi and Jumman v. State of Punjab, that the confirmation proceedings are a continuation of the trial at the Sessions Court. Support for such an understanding can be derived from the fact that Section 366(1) states that the “proceedings” shall be submitted to the High Court unlike the appellate provisions where the factum of appeal lies in the conviction or acquittal or the enhancement of the sentence (Section 374 read with Section 386). There is however, a fundamental distinction between the confirmation proceedings at the High Court and a trial at the Sessions Court. While the Code, under Section 273, creates a general rule that all evidences taken in the course of the trial shall be taken in the presence of the accused, Section 367 states that the general rule in case of confirmation proceedings is that, unless the High Court feels otherwise, the presence of the convicted person is not required even when new evidence is taken. The Supreme Court has suggested that the presence or the absence of the accused does not make a difference at the confirmation stage since the High Court are duty bound to give the matters its utmost and undivided attention. Here, it is pertinent to mention that under the appellate jurisdiction, the Code in Section 391(3), grants the right to an accused (or his pleader) to be present when additional evidence is taken.

The Code also specifies that the confirmation proceedings should be conducted at least in front of a division bench of the High Court. Should there be any difference of opinion, the matter will be referred to a third judge whose decision will determine the final outcome of the case.

In death penalty cases, the normal practice is that the Sessions Court refers the matter for confirmation to the High Court and additionally, the convict files an appeal on his conviction under Section 374(2) of the Code. According to Section 368, the order of confirmation is not given until the appeal is disposed off by the high court. It is also clarified that there is no obligation on the convict that he must appeal his conviction to the High Court. Even if he does not, the constitutional court is duty bound to re-assess the death case.

Powers of the High Court

As discussed above, the power of a high court in confirmation proceedings is considered to be a continuation of trial. It is well settled that in a reference under the confirmation provision, the High Court has to consider the evidence afresh and arrive at its own independent findings with regard to the guilt of the accused, independent of the views of the Sessions Judge. At the same time, the Supreme Court has also cautioned that the conclusion arrived at by a sessions court cannot be completely overlooked.

Section 368 delineates the powers of a high court during a confirmation proceeding. The High Court can do the following: confirm the death sentence, pass any other sentence, annul the conviction but convict the accused of any other offence, order a new trial on the same or amended charge, and finally may also acquit the person. These powers look similar to the powers of the appellate court under Section 386. However, there are some essential differences between the confirmation and appellate proceedings.

Confirmation proceedings versus appellate proceedings

There are three major differences between the power of the High Court when it is seized of a confirmation proceeding and an appellate proceeding under the Code.

First, the reference to confirmation is automatic whereas appeal proceedings are only brought before the court if the distressed party files an appeal (and has a right to file one). A corollary of this situation is that in a criminal appeal, the court can dismiss the appeal if it decides that there is no ground for interference without examining the entire record. On the contrary, the High Court is duty bound to consider the entire evidence on record while confirming a death sentence.

Second, the confirmation court has a power to order further inquiry or take evidence (itself or by a lower court) without indicating any reason for doing so (under Section367(1)) whereas under Section 391(1), an appellate court has to provide written reasons to justify its act of taking new evidence (itself or by a lower court). Further, Section 391 does not empower the High Court sitting in the criminal appellate side to order further inquiry.

Finally, the appellate court has a certain leeway in not providing elaborate reasons should it agree with the findings of the trial court which is absent in confirmation cases. In confirmation proceedings, as written earlier, the High Court needs to come to an independent finding regarding the guilt of the accused and the sentence.

Special legislations and confirmation proceedings

Section 4(2) of the Code empowers the legislature to create separate trial proceedings for offences that are not part of the Indian Penal Code, 1860. There is therefore, a possibility that automatic confirmation proceedings available under the Code could be excluded. The (now repealed) Terrorist and Disruptive Activities (Prevention) Act, 1987 explicitly negated the role of the High Court and provided a direct right to appeal on both facts and law (not confirmation) to the Supreme Court under Section 19. Yakub Memon was hanged under this law and therefore, did not get the benefit of the confirmation proceedings at the High Court. Under the Prevention of Terrorism Act, 2002 (also repealed), the Parliament provided a right to appeal to the High Court both “on facts and on law” which was similar to the confirmation proceedings (but not the same). The same model was followed in the Unlawful Activities Prevention Act, 1967 through the National Investigation Agency Act, 2008 under Section 21. In POTA and UAPA, the cases are not automatically referred to the High Court, rather they must be appealed. The major difference lies in the fact that in the special laws, the appellate court only looks at the points raised by the appellant and does not examine the entire record, unlike a confirmation proceedings which operates independently of an appeal. At first glance, this situation is counter intuitive. One expects increased safeguards when special laws provide for prolonged period of police custody and the reversal of the burden of proof but the opposite situation prevails.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. Amrutanshu Dash is a student in his fifth year at the same law school. The Clinic was an intervenor in Yakub Memon’s case. The views expressed in this article are those of the authors alone.)

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Human Rights Supreme Court of India

In light of persistent executive failure, judicial review is an effective check on exercise of mercy powers

DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleThe President of India exercises mercy powers under Article 72 of the Constitution of India and the governors do it under Article 161. Historically seen as private acts of grace, clemency powers are now constitutionally guaranteed rights and consequently, must be exercised with a great degree of responsibility.

Does any relief remain after the President or a governor exercises these powers? Or are all remedies exhausted? The Supreme Court of India has in several decisions analysed these questions and answered that the courts have the power to judicially review the exercise of mercy powers but that this power is extremely limited. In exercise of their powers of judicial review, the courts do not sit in appeal over the decisions of the President or governors but can only examine the manner and materials relied upon to reach the conclusion.

In Shatrughan Chauhan v. Union of India and Others, the Supreme Court considered and consolidated much of the jurisprudence on the judicial review of mercy powers in India in relation to prisoners on death row. The Court held that the exercise of powers under Articles 72 and 161 are essentially executive actions and therefore amendable to judicial review. It held that while the decision of the President or a governor is per se beyond judicial scrutiny, what can be reviewed is the material that was relied on to arrive at the conclusion. The scope of the judicial review of decisions taken by high constitutional functionaries has to be balanced with the right of prisoners to seek executive clemency.

The Law Commission of India in its 262nd Report has listed, after an analysis of various judgments of the Supreme Court, the various circumstances in which the judicial review of the exercise of mercy powers is permissible. This includes (1) where the power is exercised without being advised by the government, (2) where there has been a transgression of jurisdiction by a governor or by the President, (3) where there is non-application of mind or mala fides, (4) where power has been exercised on political considerations, (5) where there is arbitrariness, and (6) where irrelevant considerations have been considered or where relevant material has been left out.

The file’s journey

To find out about what has been considered and what has been left out, it is necessary to track the movement of the mercy petition file. While procedures in individual cases may vary according to the law under which a person is convicted, The prisoner’s petition usually finds its way to the Home department of the concerned state. The state government then gives its advice to the Governor, who then decides the petition based on this recommendation. Thereafter, the file is sent to the Union Home Ministry which in turn sends its recommendations to the President of India and then the President herself takes a decision. Often, this involves a long chain of correspondence between various government agencies including prisons. Usually, with a change in government, the files are sent back by the President for consideration by the new government. While the Supreme Court has recommended that this entire process should be concluded within three months, in many cases, it has taken over a decade.

The objective is to present a full picture to the Governor and the President so that they may decide on the plea beyond the strictly judicial plane. But often, there are lapses in procedure or important materials are either accidentally or deliberately left out and irrelevant factors are considered.

Errors in exercise of mercy jurisdiction

For instance, in Epuru Sudhakar’s Case, the Supreme Court set aside a pardon granted by the Governor because extraneous circumstances, such as the convict “belonging to an upper caste” and “being a good Congress worker”, had been considered.

In Shankar Kisanrao Khade’s Case, the Supreme Court admitted that Dhananjoy Chatterjee’s case had been wrongly decided. He was hanged in 2004 after the President rejected his mercy petition. The court had not considered the mitigating circumstances properly. Much emphasis was laid on the circumstances of the crime rather than the circumstances of the criminal. In its 262nd Report, the Law Commission also said that the Governor rejected Dhananjoy Chatterjee’s petition without taking into consideration the mitigating circumstances.

The Law Commission report also discussed Bandu Baburao Tidke’s case, where the President commuted the death sentence to life imprisonment in 2012 when the prisoner had actually died in jail in 2007. This incident demonstrated the complete non-application of mind and the failure to consider or even call for records from the prison where the prisoner was lodged in, as they would have shown that the prisoner was already dead.

Is there a right to judicial review of a decision made in a second mercy petition?

Most recently, Yakub Memon’s case seemed to change the jurisprudence to some extent. It may even be seen as having curtailed the judicial review of mercy petitions. Initially, Yakub Memon’s brother had filed a mercy petition and it was rejected in 2014. After a review petition was dismissed in 2015, a warrant was issued fixing a date for execution. After that, a mercy petition was filed before the Governor and thereafter before the President. The President rejected the mercy petition around 10 pm on the night before the date on which the execution had been scheduled for 7 a.m. While a stay was sought on the execution so that he could seek the judicial review of the rejection of his mercy petition, the Supreme Court refused to stay it. It held that since the rejection of the first mercy petition in April 2014 had not been challenged, the prisoner could not avail of the period of 14 days after the rejection of his second mercy petition. In effect, this deprived him of the opportunity for the judicial review of the rejection of his mercy petition. The decision seems to be at odds with the decision in Shatrughan Chauhan’s Case, which was decided by a bench of the same strength. Therefore, the question of the maintainability of a second mercy petition and the right to the judicial review of a decision made in a second mercy petition needs to be adjudicated by a larger bench.

The problem of secrecy

There have also been cases where the President of India has conditionally commuted death sentences. Sometimes, these conditions may be excessively harsh and would amount to a punishment greater than what the courts have the power to prescribe. Previously, several Presidents would record specific reasons on file for taking the decision to accept or reject the mercy petition. Of late however, the Presidents only signs off on the government’s recommendation and no reasoning is provided. While it is not open to question the final decision, it is important to ensure that the decisions taken by the highest of constitutional authorities are not whimsical, are based on relevant material, and are reasoned decisions. In the constitutional set-up, it should be noted at this point that governors and the President act only on the advice of the government and cannot act independently.

Effective checks on executive failures

In view of executive failures, some of which have been illustrated above, we can see the need for stringent judicial review in cases where the death penalty has been imposed. While the judiciary cannot provide a foolproof solution, it acts as another check where the consequences of the punishment are final and irreversible. It is also necessary that the judiciary, in reviewing the executive action, fix responsibility on erring officials in the executive so that there is accountability for deliberate or negligent omissions in placing materials before a governor or the President. The executive should also lay down norms for decisions in mercy petitions and not only in capital punishment cases. Currently, guidelines only exist on mercy petitions in death sentence cases. These guidelines however, do not take into account recent judicial decisions. After all, under the law laid down by the Supreme Court in Kehar Singh’s case, it is not for the judiciary to law down guidelines for the exercise of mercy powers. The judiciary can only step in to ensure that the powers are “exercised in the aid of justice and not in defiance of it.”

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The Clinic represented was an intervenor in Yakub Memon’s case. The views expressed in this article are those of the authors alone.)

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Human Rights Supreme Court of India

What is the meaning of “life”? – With no clear meaning, life imprisonment, the death penalty alternative, is just as unfair

DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleThe death penalty was the norm and life imprisonment, the exception, under the Code of Criminal Procedure, 1898. Its replacement, the Code of Criminal Procedure, 1973(“CrPC”), reversed that position. Life imprisonment became the norm. The death penalty could only be awarded in exceptional cases, for which the court would have to record “special reasons”. In 1980, the Supreme Court took the law further down this path. After Bachan Singh v. State of Punjab, the death penalty could only be applied in the “rarest of the rare” cases and that too only “when the alternative option is unquestionably foreclosed”. What are these alternative options?

For nearly all punishments where the death sentence is prescribed, the Indian Penal Code, 1860 prescribes life imprisonment as an alternative. The meaning of ‘life imprisonment’ however, is not really clear. A brief survey of the Supreme Court’s jurisprudence on how the term has been understood raises a number of problems.

What is “life”?

It was settled in the case of Gopal Godse v. State of Maharashtra (1961) that life imprisonment meant imprisonment for one’s whole life. The power to remit this sentence was entirely within the executive domain. Then in 1978, Parliament enacted Section 433-A into the CrPC to mandate that a term of life imprisonment would be for a minimum of 14 years.

The constitutionality of this provision was assailed in Maru Ram’s Case (1980) by several petitioners including many convicts who were hopeful of release through remissions earned in prison or by the commutation of their sentence by state governments. The Supreme Court upheld its constitutionality. The Court noticed some startling instances of prisoners sentenced to life imprisonment being released for whimsical reasons such as a politician’s birthday or a minister visiting the jail and observed that while it could not find any particular logic why a period of 14 years was specified, it agreed, in deference to the legislature, that without Section 433-A, there was nothing to prevent persons convicted of serious offences from walking out of prison the very next day on account of their sentence being commuted by the state government.

The question of an appropriate alternative sentence arose again in Swamy Shraddananda’s Case (2008). In an appeal from a death sentence to the Supreme Court, Justice S.B. Sinha favoured life imprisonment whereas Justice Katju favoured the death penalty. The case was referred to a larger bench. A three-judge bench of the Court observed that in some cases, a sentence of 14 years was too mild and would amount to no punishment at all whereas the death penalty would seem too harsh. The Court was of the view that judges would be nudged to award the death sentence if there was nothing available to them between these two punishments. The Court therefore held that it had the power, in the case of a prisoner sentenced to life imprisonment, to direct that the prisoner would not be released from prison, either for the rest of his life, or for a duration specified by the court. Following this decision, the Supreme Court has awarded life imprisonment without parole for periods between 25 and 30 years in lieu of the sentence of death. The correctness of the decision of the court in Swamy Shraddananda’s Case is being considered by a constitution bench of the Supreme Court in Union of India v. V. Sriharan. It will question whether courts can place sentencing in some cases beyond the executive’s reach. Judgment has been reserved and is awaited.

The Court’s penological experimentation does not seem to have stopped there. In Subhash Chander’s Case (2001), a convict was spared the death sentence by the Supreme Court on his counsel making a submission that the prisoner would spend the rest of his life in prison without applying for pre-mature release or commutation. In Shankar KisanraoKhade’s Case (2013), the Court, while questioning the application of the death penalty and asking the Law Commission to examine the question, directed that the prisoner should serve two life sentences consecutively, rather than concurrently, as is the norm, and overturned the High Court’s recommendation for the award of the death penalty.

No consistent understanding of what is meant by “life imprisonment”

Prison_Cell

After the Criminal Law (Amendment) Act 2013, for the first time the Indian Penal Code prescribed sentences for one’s “whole life” for some types of aggravated sexual assault. It is important to note however, that there was no amendment to the general meaning of “life imprisonment” in the Indian Penal Code. Nor was there any clarification as to whether these whole life sentences would be beyond executive remission.

There is thus no coherent or consistent understanding about the meaning of the term “life imprisonment”. Alternatives to the death penalty should be explored, especially in light of the 262nd Law Commission Report, which found that the “rarest of the rare” principle has been arbitrarily applied. The alternative punishment to the death sentence, in its present form, seems to suffer similarly from arbitrariness and capriciousness.

It is important that there is consistency in handing out sentences of life imprisonment. Courts are, after all, dealing with human lives and these decisions cannot be taken lightly. There are no parameters at present to judge when a person should be awarded life imprisonment without parole for 30 years or life imprisonment simpliciter, or when life sentences awarded are to run consecutively instead of concurrently. The entire process is judge-centric and is subjective to such a high degree that it is not sustainable for a fair criminal justice system. The legislature and the judiciary should take note of these problems with the alternatives available to awarding the death penalty and work towards making them more viable.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi.)

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Human Rights Supreme Court of India

The Shabnam guidelines and why the convict’s lawyer should be given notice of death warrant proceedings

DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleWhen Yakub Memon was executed recently, there was some confusion about “death warrant” or “black warrant” proceedings. They were also controversial in previous cases such as that of Mohammed Afzal Guru where the spectre of a secret execution haunted the government and that of Surinder Koli where three warrants, containing a range of dates within a week, were under challenge.

Upon a conviction at the end of a criminal proceeding, the sentencing court or the trial court has to issue a conviction warrant to the relevant jail. This warrant specifies the period of imprisonment to which the convict has been sentenced.

In cases where the death sentence is awarded, it is formally called a “warrant for execution of a sentence of death”. Form No. 42 in the Second Schedule of the Code of Criminal Procedure, 1973 contains the form of the “death warrant” or “black warrant”. It is addressed to the superintendent of the relevant prison who is supposed to return the warrant to the court after certifying that the death sentence has been carried out.

When can a death warrant be issued?

The court which imposed the sentence of death at the first instance (that is, the trial court) has the power to issue the death warrant under the CrPC. Sections 413 and 414 of the CrPC state that upon the high court confirming a death sentence, the sessions court shall cause that order to be carried into effect by issuing a warrant. In practice however, since an appeal lies to the Supreme Court against a death sentence, a sessions court would normally refrain from issuing a death warrant.

Even if the Supreme Court confirms the death sentence, there are several other remedies available to a prisoner to challenge the death sentence such as review and curative petitions, and mercy petitions under Articles 161 and 72.

And today, if a sessions court issues a death warrant before the end of the judicial and administrative process, it would amount to a serious violation of the law as laid down by the Supreme Court in Shabnam v. Union of India (2015) which affirmed the guidelines laid down by the Allahabad High Court in PUDR v. Union of India (in which the death sentence meted out to Surinder Koli was commuted to life imprisonment).

The guidelines in Shabnam arose out of a case in which death warrants were issued against two prisoners currently on death row – Shabnam and Saleem. The Supreme Court had confirmed their death sentences on May 15, 2015. A mere six days later, a sessions court in Uttar Pradesh issued death warrants against them stating that the execution should be held “as soon as possible”. No date, time, or place was specified on the warrants. This omission was already in violation of PUDR, a judgment that this Sessions Court was bound by. Further, Shabnam and Saleem were yet to exhaust several other remedies available to them.

In Shabnam, the Supreme Court held that the principles of natural justice have to be read into death warrant proceedings. A convict has to be given prior notice of the death warrant proceeding. The warrant has to specify the exact date and time of execution and not a range of dates. There should be a reasonable period of time between the date of the order on the warrant and the date set for execution to enable the convicts to meet their families and pursue legal remedies. Copies of the execution warrant should be made available to the convicts and they should be given legal aid at these proceedings if they do not already have a lawyer. These guidelines now need to be mandatorily followed in all cases where death warrants are issued.

When a death warrant was issued against Yakub Memon on April 30, the Shabnam guidelines were not yet in force. However, once Shabnam was decided, the Maharashtra government ought to have recalled the death warrant and initiated fresh proceedings to ensure that the rule laid down in Shabnam was satisfied. Most importantly, Yakub (lodged in a jail in Nagpur) and his lawyer should have been present at the proceedings that were held before a Mumbai court.

The guideline that a death warrant cannot be issued unless all available remedies are exhausted also needs to be seen in light of the contemporary jurisprudence on the death penalty. So after Shatrughan Chauhan v. Union of India (2013), a convict’s challenge to the rejection of his mercy petition is one of the available remedies.

Why are death warrants and their proceedings significant?

Shabnam has now held that holding a death warrant proceeding in open court with prior notice is vital to ensure that there is no secrecy or arbitrariness around executions. It enables the lawyer and the prisoner to ensure that the sentencing court is aware of pending proceedings challenging the conviction and sentence, if any.

For instance, the constitutional bench decision in Md. Arif@ Ashfaqv. The Registrar, Supreme Court of India allowed for an open court hearing of a review petition in all death sentence cases. In the Shabnam case, the sessions judge was unaware that neither Shabnam nor Saleem had had the opportunity to exercise their right to pursue this particular legal remedy, and instead, issued death warrants in haste. Such a situation could have been avoided if their lawyers had been informed of these proceedings.

Similarly, Shatrughan Chauhan now gives prisoners on death row the right to challenge the rejection of their mercy petitions by governors or the President through the writ jurisdiction under Articles 226 and 32. The Court also prescribed a minimum 14-day period between the receipt of the communication of the mercy petition being rejected, and the scheduled date of execution for two main reasons: (a) to allow the convict to make his peace with God and settle his earthly affairs and (b) to meet his family and avail of judicial remedies.

A court vested with the power to issue a death warrant must examine the case before it through a judicial lens and not view it as a mere formality and it may, if it finds that a prisoner has not yet exercised these judicial and administrative remedies available to them, postpone the setting of a date of execution. This purpose may not be served merely by having a lawyer who would not necessarily know if the convict has availed of his legal remedies. Considering that the majority of Indian death row convicts are illiterate or have had minimal or no access to education, they may not be in a position to inform the lawyer appointed for them, of proceedings initiated on their behalf. The convict’s lawyer therefore, should be given notice of the death warrant proceedings.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The clinic represented Shabnam and Saleem before the Supreme Court in Shabnam v. Union of India and was an intervenor in Yakub Memon’s case.)