Published in ACHR website on Sep. 26 ::
Asian Centre for Human Rights (ACHR) in its report, “INDIA: Death Without the Right to Appeal”, released today stated that India is not complying with the “United Nations safeguards guaranteeing protection of the rights of those facing the death penalty” which provide that “Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.”
Many death row convicts are being denied the right to appeal to a court of higher jurisdiction with the Supreme Court setting aside acquittal by the High Courts and restoring death penalty imposed by the trial courts, and enhancing lesser sentences of life imprisonment awarded by the High Courts to death penalty. Further, with respect to offences under the Terrorists and Disruptive Activities (Prevention) Act (TADA), the Supreme Court being the appellate court against the orders of the designated TADA courts, the convicts under the TADA are denied the right to appeal before the High Courts as available to those convicted under the Indian Penal Code offences. The Supreme Court is still considering appeals of those convicted under the TADA.
The Supreme Court also directs for fresh consideration by the High Courts in some cases where death penalty was not imposed. This is nothing but the apex court influencing the decisions of the lower courts in favour of death penalty.
Citing the case of death-row convict Devendra Nath Rai, Asian Centre for Human Rights stated Rai, an Army Jawan, was accused of homicidal murder of his two colleagues on 15 October 1991 and sentenced to death by the Court Martial. Following appeal, the Allahabad High Court converted the death sentence to life imprisonment on the ground that the case did not fall in the “rarest of the rare” category. However, the Supreme Court on 10th January 2006 directed the Allahabad High Court to reconsider its judgment on the quantum of sentence while noting that the High Court without considering the balance sheet of aggravating and mitigating circumstances abruptly concluded the case as not being covered by the “rarest of rare” category. To decide the quantum of sentence, the Allahabad High Court sat on the case for more than eight years, dismissed the Writ Petition for “want of prosecution” in the meanwhile, and thereafter, restored the case vide order dated 28.01.2014 and transferred it to the Armed Forces Tribunal, Lucknow in view of Section 13 of the Armed Forces Act, 2007. When ACHR’s counsel met Rai at Naini Jail, Allahabad on 20th August 2014, Rai had no idea about the status of the trial and was absolutely incoherent, indicating clear signs of mental imbalance.
“The trial of Rai has been going on for last 23 years. With the trial being referred back to the Armed Forces Tribunal, it has the potential to continue for another 23 years if he is again awarded death sentence and files appeals before the Allahabad High Court and the Supreme Court! This is such a travesty of justice.” –stated Mr Suhas Chakma, Director of Asian Centre for Human Rights.
ACHR stated that the Review Petition which can be filed against the orders of the Supreme Court cannot be considered as an appeal “to a court of higher jurisdiction” as provided in the United Nations safeguards guaranteeing protection of the rights of those facing the death penalty. A review petition is filed to the same Bench of Judges which delivered the judgment or order sought to be reviewed and therefore, it cannot be considered as an appeal “to a court of higher jurisdiction”.
Even a curative petition filed before the Supreme Court after dismissal of a review petition cannot be considered as an appeal to a court of higher jurisdiction as provided under “the United Nations safeguards guaranteeing protection of the rights of those facing the death penalty” because of its very restrictive scope. A curative petition is an exception and can be filed only if a Senior Advocate certifies that it meets the requirements of filing curative petition stipulated by the Supreme Court.
ACHR recommended that denial of the right to appeal as a result of the enhancement of punishment by the Supreme Court into death penalty should be a ground for granting mercy i.e. the commutation of the death sentence into life imprisonment by the President of India.
“The President ought to automatically grant mercy to those condemned prisoners whose acquittal or lesser sentences are enhanced to death penalty by the Supreme Court.” – further stated Mr Chakma.