CAN SOCIETY ESCAPE THE NOOSE...? The Death Penalty in India
CASES, MATERIALS AND OPINION
By
Arunjeev Singh Walia B.A., LLB, Advocate Colin Gonsalves B.Eng., LLB, Senior Advocate of the Supreme Court of India & Vinay Naidoo B.Sc. (Hons.), G.R.S.C., Cert. (Sorbonne), M.Sc, C.P.E., M.A., B.V.C. Barrister-at-Law (Gray's Inn)
The Human Rights Law Network, India *C" JUNE, 2005 CONTENTS
CONTENTS IN BRIEF vin
PREFACES K. G. Kannabiran X Justice Z. M. Yacoob xiii
FOREWORD Colin Gonsalves xvi About the Book XX
ACKNOWLEDGEMENTS xxii Contributors XXV About the editors & principal contributors XXV Editorial and written contributions xxvii
TABLE OF CASES 11 By Subject 11 By Alphabetical Listing 18
CHAPTER I 23
FIRST WORDS...
By Vinay Naidoo
A CRIMINAL SYSTEM OF INJUSTICE 26
RELIGIOUS VIEWS ON THE DEATH PENALTY 29
BUDDHISM 32 ISLAM 33 CHRISTIANITY 34 HINDUISM 35 SIKHISM 36 JUDAISM 37
EVOLVING STANDARDS OF DECENCY 38
THE THEORIES OF PUNISHMENT AND DETERRENCE 43
A ROtJTE TO THE ABOLITION OF THE DEATH PENALTY IN INDTA 46 CAN SOCIETY ESCAPE THE NOOSE...?
CHAPTERII 49
THE LAWS. THE PROCEDURE & PURPOSE OF SENTENCING
I. PRO VISIONS OF DIFFERENT INDIAN LAWS IN WHICH THE DEATH SENTENCE
MAY BE AWARDED 50
AIR FORCE ACT, 1950 50
ARMYACT, 1950 51
COMMISSION OF SATI (PREVENTION) ACT, 1987 52
INDIAN PENAL CODE 53
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 54
COMMENT: 54
THE PREVENTION OF TERRORISM ACT (POTA)
AND THE DEATH PENALTY 54
II: THE PROCEDURE & PURPOSE OF SENTENCING 56
A. THE PROCEDURE OF SENTENCING 56
PRE-SENTENCING HEARING: SECTION 235 OF CrPC 56
NON-COMPLIANCE WITH SECTION 235(2), CR.P.C 56
B. THE PURPOSE OF SENTENCING 58
CASE LAW 59
COMPLIANCE WITH SECTION 433A 70
CONSTITUTIONALITY OF SECTION 433-A, IPC 70
OPINION: 'Proportionality: Does The Penalty Fit The Offence?' 71
CHAPTER III 75
ARTICLES
TREND TOWARDS WORLDWIDE ABOLITION OF THE DEATH PENAT.TY 76 By Richard C. Dieter CONTENTS
TREADING THE PATH TOWARDS ABOLITION OF THE DEATH PENALTY 90 By Arunjeev Singh Walia
PUBLIC OPINION AND THE DEATH PENALTY: THE ROUTE TO ABOLITION. WHEN THE ROAD IS BLOCKED 110 By Vinay Naidoo & Lauren Morris
JOURNEY TOWARDS HUMANITY 150 By Asim Sarode
Illustrative Tabie: Persons Executed from 1950 to 1996
WHEN THE RIGHT TO LIFE IS NOT FULLY PROTECTED. WHAT OTHER RIGHTS SUFFER THE DEATH PENALTY? 153 By Daniel Annenberg
FOUR MYTHS ON THE DEATH PENALTY 159 By Kimmo Suominen
OPINION: 'Being "Tough on Crime": It's Not Working' 162
Illustrative Tables: Sample 'Incidence and Rates' of Serious Offences, by Country
OPINION: 'The Death Penalty for Rape: A Populist Slogan' 163
CHAPTER IV 165
CONSTITUTIONALITY OF THE DEATH SENTENCE
CONSTITUTIONALITY OF THE DEATH SENTENCE: CASE-LAW 166
CONSTITUTIONAL POWERS OF SUPREME COURT OF INDIA 181
CONSTITUTIONAL POWER OF PRESIDENT AND GOVERNOR 182
CONSTITUTIONAL POWERS OF PRESIDENT AND GOVERNOR IN MATTERS
RELATING TO THE DEATH SENTENCE 182
POWERS OF THE PRESIDENT 183
POWERS OF THE GOVERNOR 183
CASE LAW 184 CAN SOCIETY ESCAPE THE NOOSE...?
CONSTITUTIONALITY OF SECTION 433-A IPC 186
CONSTITUTIONALITY OF SECTION 303 IPC 186
CHAPTER V 187
GUIDELINES FOR AWARDING THE DEATH SENTENCE
SURVEY DATA OF THE PRINCIPLE REASONS FOR IMPOSITION/CONFIRMATTON AND FOR COMMUTATION OF DEATH SENTENCES 188
GUIDELINES FOR AWARDING DEATH SENTENCE: CASE LAW 189
CHAPTER VI 239
THE 'RAREST OF RARE' DOCTRINE
THE 'RAREST OF RARE' 240
EDITED JUDGMENTS ON THE 'RAREST OF RARE' 240
CHAPTER VII 329
THE MEANING OF LIFE IMPRISONMENT
THE MEANING OF LIFE 330
THE MEANING OF LIFE IMPRISONMENT: CASE LAW 330
EDITED JUDGMENTS ON LIFE IMPRISONMENT 336
CHAPTER Vm 509
APPEALS AND REVIEW POWERS OF THE SUPREME COURT
I: APPEALS 510
RIGHT OF APPEAL TO THE APEX COURT IN CASES WHERE DEATH SENETENCE HAS BEEN AFFIRMED BY THE HIGH COURTS AND THE PROCESS IN THE APEX COURT RELATING TO PASSING OF THE DEATH SENTENCE CONTENTS
II: REVIEWS
THE SUPREME COURT: REVIEWING ITS OWN JUDGMENT
REVIEW POWERS OF THE SUPREME COURT: CASE LAW
REVIEW POWERS OF THE SUPREME COURT: DECISIONS OF THE GOVERNORS AND THE PRESIDENT 535
REVIEW POWERS OF THE SUPREME COURT: LIMITS OF DISCRETION TO ACQUIT/PARDON 536
CHAPTER IX 545
DIFFERENCE OF .TUDICIAL OPINION: SPLIT BENCHES
DIFFERENCE OF JUDICIAL OPINION: SPLIT BENCHES 546
A WRIT PETITION SEEKING GUIDELINES 546
DIFFERENCE OF JUDICIAL OPINION: SPLIT BENCHES: CASE-LAW 560
OPINION: "The Vice of Arbitrariness.' 565
CHAPTER X 569
RIGHTS OF PRISONER ON DEATH ROW
RIGHTS OF PRISONER ON DEATH ROW 570
CASE LAW 570
CHAPTER XI 597
DELAY IN EXECUTION OF THE DEATH SENTENCE
DELAY IN EXECUTION OF THE DEATH SENTENCE 598
CASE LAW 598 CAN SOCIETY ESCAPE THE NOOSE...?
CHAPTER XII 643
METHODS OF EXECUTION
METHODS OF EXECUTION 644
CASE-LAW 645
THE LAW COMMISSION 664
METHODS OF EXECUTION: INTERNATIONAL USAGE BY RETENTIONIST COUNTRIES 679
OPINION: 'The Troubling Paradox Behind the Use of Electrocution and Lethal Injection.' 681
CHAPTER XIII 685
.TUVENILES AND THE DEATH PENALTY
I: THE INDIAN POSITION 686
H: THE INTERNATIONAL POSITION 710
INTERNATIONAL TREATIES EXCLUDING JUVENILES OFFENDERS FROM THE DEATH SENTENCE 712
INTERGOVERNMENTAL BODIES, INTERNATIONAL OPINION AND JUDGMENTS 713
CHAPTER XIV 725 THE MENTALLY CHALLENGED AND THE DEATH PENALTY
I: THE INTERNATIONAL POSITION 726
II: THE INDIAN POSITION 729
CHAPTER XV 737
INTERNATIONAL CONSTITUTIONAL LAW ON THE DEATH PENALTY. THE INTERNATIONAL COURTS AND THEIR JUDGMENTS
I: INTERNATIONAL INSTRUMENTS ON THE DEATH PENALTY 738
II: CONSTITUTIONAL LAW ON THE DEATH PENALTY: THE JUDGMENTS OF FOREIGN NATIONAL CONSTITUTIONAL COURTS 745 CONTENTS
CONSTITUTIONAL COURT OF SOUTH AFRICA 746
CONSTITUTIONAL COURT OF TANZANIA 756
SUPREME COURT OF THE UNITED STATES OF AMERICA 757
SUPREME COURT OF BELIZE 761
SUPREME COURT OF THE UNITED STATES OF AMERICA: Legal Aid 772
Further U.S. Supreme Court Judgments on Ineffective Legal Aid in Death Penalty Matters 790
HI: THE INTERNATIONAL COURTS 794
THE INTERNATIONAL COURT OF JUSTICE 794
THE EUROPEAN COURT OF HUMAN RIGHTS 796
THE INTER-AMERICAN SYSTEM AND THE ORGANISATION OF AMERICAN STATES 798
THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS 802
THE HUMAN RIGHTS COMMITTEE 807
THE PRIVY COUCIL 808
IV: THE JUDGMENTS OF THE INTERNATIONAL COURTS 809
THE INTERNATIONAL COURT OF JUSTICE 815
THE EUROPEAN COURT OF HUMAN RIGHTS 822
THE INTER-AMERICAN SYSTEM AND THE ORGANISATION OF AMERICAN STATES 847
THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS 863
THE HUMAN RIGHTS COMMITTEE 865
THE PRIVY COUCIL 868 CAN SOCIETY ESCAPE THE NOOSE...?
CHAPTER XVI 935
THE END OF THE 7 YEAR DE FACTO MORATORIUM: THE DHANANTOY CHATTERJEE EXECUTION. & BEYOND...
By Vinay Naidoo
ARTICLE:
"DHANANJOY & THE DEATH PENALTY: CAN SOCIETY ESCAPE THE NOOSE...?" 937
THE LAST WEEK IN A LIFE: THE FINAL DHANANJOY CASE 944
THE GROUNDS 947
THE ORDER 958
EQUALITY BEFORE THE LAW: ARTICLE 14 962
A DRAFT GROUND 964
LAST WORDS... 966
APPENDICES 971
APPENDIX I 973 BIBLIOGRAPHY & RESOURCES
APPENDIX II 981 EXTRACTS FROM INTERNATIONAL INSTRUMENTS PERTAINING TO THE DEATH PENALTY
APPENDIX III 1003 COUNTRIES THAT HAVE ABOLISHED THE DEATH PENALTY IN LAW (FOR ALL CRIMES)
COUNTRIES THAT HAVE ABOLISHED THE DEATH PENALTY IN LAW (FOR ORDINARY CRIMES)
COUNTRIES THAT ARE ABOLISHIONIST IN PRACTICE.
COUNTRIES THAT RETAIN USAGE OF THE DEATH PENALTY, IN LAW & PRACTICE.
APPENDIX IV 1009 USEFUL WEBSITES ON THE DEATH PENALTY
APPENDIX V 1113 QUOTATIONS ON THE DEATH PENALTY