CAN SOCIETY ESCAPE THE NOOSE...? The Death Penalty in

CASES, MATERIALS AND OPINION

By

Arunjeev Singh Walia B.A., LLB, Advocate B.Eng., LLB, Senior Advocate of the & 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 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