A Release by ACHR
New Delhi: Asian Centre for Human Rights in its report, India: Death Without Legal Sanction, stated that India has been imposing death penalty without conforming with international standards for fair trial i.e. Article 14 of the International Covenant on Civil and Political Rights (ICCPR), United Nations (UN) Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, UN Basic Principles on the Independence of the Judiciary, UN Basic Principles on the Role of Lawyers, UN Guidelines on the Role of Prosecutors, UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and UN Standard Minimum Rules for the Treatment of Prisoners.
“Imposition of death penalty without ensuring respect for the fair trial standards provided under international human rights standards constitutes arbitrary deprivation of the right to life. Such death penalty is nothing but judicial murder”.- states the study.
This study highlights that India has not been complying with its obligations under the ICCPR and has indeed been imposing death penalty without legal sanction. While the violations of international fair trial standards such as denial of legal assistance of the defendant’s own choosing at every stage of the proceedings and trial without delay are plenty, this report highlights six critical instances of imposition of death penalty without legal sanction.
First, judicial discretion is one of the cardinal principles of independence of judiciary which stands violated in case of mandatory death penalty as it prevents any possibility of taking into account the defendant’s personal circumstances, the circumstances of the particular offence and any related mitigating factors by the judiciary. The UN Human Rights Committee has stated that “the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of Article 6, paragraph 1 of the ICCPR”, and is fundamentally incompatible with the right to fair trial and due process guaranteed under Article 14 of the ICCPR. India’s Supreme Court had declared mandatory death penalty under Section 303 of the Indian Penal Code (IPC) as unconstitutional in Mithu v. State of Punjab in 1983.
Though the Supreme Court had declared mandatory death sentence as unconstitutional in 1983, the government of India continued to enact laws to provide for mandatory death sentence while the courts too continue to impose mandatory death penalty under various laws including Section 27(3) of the Arms Act of 1959, Narcotic Drugs and Psychotropic Substances Act of 1985, the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act of 1989, and the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act of 2002.
Second, India imposes death penalty in clear violation of the fair trial standards provided under the ICCPR. Article 6.2 of the ICCPR provides that death penalty “can only be carried out pursuant to a final judgement rendered by a competent court”. In this regard, the features of the “competent court” ought to be considered as the establishment of a court by law by itself cannot be considered as ‘competent’ unless the trial complies with the international fair trial standards and the court itself meets the UN Basic Principles on the Independence of the Judiciary. A competent court must conduct the trial through the common laws of the country such as Code of Criminal Procedure (CrPC) and Evidence Act. However, when the common laws relating to trial are circumscribed and made subservient to special laws while trying the cases relating to national security, counter terrorism or anti-drug measures, the special courts or designated courts are effectively reduced to military tribunal/summary trial.
The Government of India made self-incrimination prohibited under ICCPR admissible for the purposes of imposing death penalty under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA) and further allows in camera trial under the National Investigation Agency Act. Though the courts under the TADA and the POTA were established by law, because of the violations of the principles of fair trial, these courts cannot be considered as “competent court” as provided in the ICCPR; and therefore imposition of death sentences by these courts are illegal irrespective of the review by the Supreme Court. Death sentences have been imposed in terror cases in clear violations of the ICCPR and therefore, without proper legal sanction as provided under international human rights law.
Third, imposition of death penalty in clear violation of stare decisis constitutes imposition of death penalty without legal sanction. The Bachan Singh judgement held that death penalty can be imposed only in the “rarest of rare” cases after considering aggravating circumstances relating to the crime and mitigating circumstances relating to the criminal. A balance sheet of these elements is required to be spelt out in the judgement. A number of judgements have so far been declared as per incuriam for being“inconsistent with Mithu and Bachan Singh”.
Fourth, the President of India has been held responsible for violations of Article 21 of the constitution of India in considering the mercy pleas of the death row convicts. Further, there is prohibition under Section 32A of the NDPS Act against any suspension, remission or commutation in any sentence awarded under the Act. The Supreme Court had commuted the death sentence of a number of death row convicts for violation of Article 21 of the Constitution of India by the President of India.
Fifth, India carries out execution of death row convicts in clear violation of Article 14 of the Constitution of India and international human rights law relating to equality and non-discrimination. The Supreme Court of India in the landmark judgement in the case of Shatrughan Chauhan v. Union of India delivered on 21 January 2014 held: “It is well settled law that executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres in every person, even death row prisoners, till the very last breath of their lives. We have already seen the provisions of various State Prison Manuals and the actual procedure to be followed in dealing with mercy petitions and execution of convicts.”
As the rights under Article 21 of the Constitution of India extend to till the last breath, it implies that all death row convicts are equal before law even after rejection of their mercy pleas and the laws of India do not differentiate between those convicted under anti-terror laws and other criminal offences. The right to equality and non-discrimination among the death row convicts does not get extinguished by rejection of mercy pleas.
However, there are at least two recent cases where the President of India jumped queue ahead of others to reject the mercy petitions and subsequently executed them ahead of others.
Sixth, the courts in India continue to impose death sentence on juveniles though the same have been reversed, at times with great difficulty, when the issue of juvenility was brought to the notice of the courts.
In the report, Asian Centre for Human Rights calls for the abolition of death penalty in India.