Tuesday, 29 September 2015

China prisoners on death row to get free legal aid

Source: Asia One (16 September 2015)


Convicted criminals on death row will be entitled to free legal representation under a new rule drafted by the Ministry of Justice, a ministry source told China Daily.

The ministry will assign lawyers to condemned prisoners who cannot afford one during the review of their sentences to ensure equal access to justice, according to the source.

The source said officials from the ministry and the high court are "finalizing some detailed implementation measures and the rule will be released in the next few months".

The source asked not to be identified because she was not authorised to discuss the draft plan with the media.

Under Chinese law, all death sentences must be reviewed by the Supreme People's Court before defendants can be executed. Currently, defendants who cannot afford to hire lawyers are not guaranteed representation during a death penalty review.

Che Xingyi, a lawyer at Beijing's Yingke Law Firm, which specializes in representing clients in death penalty cases, said the top court conducts reviews based on files from local courts and lawyers' previous defence statements.

This method has limitations and is not sufficient to ensure justice, Che said.

It is "more than necessary" to offer legal aid during a review of a death sentence, he said. "If the lawyers discover flaws in sentencing criteria or new evidence, they will fully defend the suspects and communicate with the judges quickly to stop imminent execution."

China does not reveal the number of prisoners on death row.

However, last year, Chinese lawyers provided free legal aid to nearly 40,000 suspects facing life imprisonment or the death penalty, a year-on-year increase of 7 per cent, according to the ministry.

The new rule follows a recent meeting of the Political Bureau of the Communist Party of China Central Committee, which stressed the importance of legal aid and was attended by the country's top leaders.

Paul Dalton, team leader for the China-EU Access to Justice Program, which was created to strengthen equality of justice in China especially among disadvantaged groups, recommended that Chinese judicial authorities be cautious when imposing the death penalty.

The top court would better protect prisoners' rights by holding public hearings during a death penalty review, Dalton said.

This would enable judges to listen to defence arguments by defendants and their lawyers instead of just reading the files.

Monday, 28 September 2015

Death Penalty or Right To Life?

Source: The Sunday Leader (27 September 2015)

With the increasing number of murders, sexual offences and drug smuggling in the nation, President Maithripala Sirisena recently spoke of re-introducing the capital punishment with the approval of parliament in a bid to eradicate these crimes.

Justice Minister Wijeyadasa Rajapakshe said the government was willing to implement the death penalty if it was necessary to avert the increasing trend in serious crimes in the nation and stressed the need to expedite investigations and punish offenders.

"We will try our best to prevent the increasing trend in crime and we will take steps to combat it also by implementing capital punishment," he said.

At present, there are over 1,115 inmates sentenced to death for murders and drugs smuggling detained at the Bogambara, Mahara and Welikada Prisons in Sri Lanka. The Department of Prisons confirmed that the prisoner who was sentenced to death recently was imprisoned about a month back.

He also said that most of the prisoners who were sentenced to death were murderers, adding that there are 40,000 high court cases, and therefore it is hard to keep a count on how many of them are given death sentences as sometimes it seems that almost every day the judges around the country give the verdict of death for serious crimes if the suspect is proven guilty with strong evidence. There was one even last week, he added.

However, the oldest inmate who was sentenced to death due to the commitment of murder is 84-year-old while the first prisoner on the death row has been there for the last 18 years since 1997, with the government spending Rs. 300 every day including food and clothing for the inmates.

However, the expenses of water and electricity used by them were not included in the said Rs. 300, claimed the Commissioner of Prisons (Operations) H. M. N. C.  Dhanasinghe.

There are around 600 inmates on whom the re-appealing of the cases has been cancelled due to the nature of their crimes and 400 prisoners have re-appealed against their verdicts. In the meantime, the hearings of the re-appealed cases in courts are pending and the final verdict will decide on whether to reduce the period of life in prison or to cancel the appeal depending on the judge's decision.

Commissioner of Prisons (Operations) confirmed that approximately five female and over 1,000 male inmates were sentenced to death in Sri Lanka, adding that the department awaits the President's decision to carry out the executions.

If an individual is arrested with more than four grams of drugs in his or her possession and if proven guilty, that person will be sentenced to death depending on the strong evidences.

Meanwhile, the department had already received around 15 applications for the post of hangman and the interviews of the applications will be held within three weeks.

However, responding to the questions by The Sunday Leader, the Commissioner of Prisons said that the death penalty does not apply to the criminals who commit sexual offences unless they commit murder following the abuse, but will be sentenced for 10-20 years in prison.

Meanwhile, the Director for Human Rights Watch's South Asia Meenakshi Ganguly said, "Human Rights Watch opposes the death penalty because it is inherently inhumane," adding that the death sentence as a punishment should be totally abolished.

She went on to say that Sri Lanka should not engage in what might appear to be a populist idea in the country. "Surely, the government knows that there is no clear evidence that the capital punishment serves as an effective deterrence for serious crimes. Therefore the criminal justice system should be strengthened which will be more effective to prevent serious crimes in the country," she said.

She further noted that the death penalty is incompatible with human rights and human dignity.

The death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty emasculates human dignity which is natural to every human being.

In the meantime, many human rights activists claim that there is a risk of executing innocent people in the justice system. There have been several, and always will be, cases of executions of innocent people. "Even we have experienced one in the recent past. No matter how developed a justice system is, it will always remain vulnerable to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable," they said.

They also claimed that the death penalty can be used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups.

As the General Assembly of the United Nations recently stated that there is no conclusive evidence of the deterrent value of the death penalty (UNGA Resolution 65/206), it is significant to note that the implementation of the capital punishment in order to eradicate serious crimes in many countries is at stake as the increasing number of crimes are still on the rise.

Just because the public request the government to take away the life of a human being does not mean that it is always the right way of eradicating the crimes in future whereas it is the duty of the justice system and the judiciary officers to emphasize the unsuitability of capital punishment with human rights and human dignity, claims the human rights activists adding that it should be abolished.

Nimalka Fernando, a lawyer and a human rights activist in Sri Lanka, says that she is alarmed that our leaders are taking decisions of this nature with scant disregard to the international standards and human rights law.

"At least I expected the Yahapalanaya (Good Governance) leaders to have a better sense and wisdom when taking decisions" she added.

She went on to say that she is concerned that the President is not receiving proper guidance from the advisors and hopes the international experts around him will tell him that introducing death penalty is a violation of basic fundamental human rights. "You cannot remove the life of a person to bring justice to another. The present norm is life imprisonment and not death penalty," she said.

"It looks as if the Sri Lankan experts have to be exposed to the international standards. They have remained under Mahinda Rajapaksa so much that they cannot think straight now", she further said.

It is noteworthy, that the request from the public for the capital punishment in the country indicates the desire to be free from crime. Nevertheless, there exist more effective ways to prevent crimes, claim the Human Rights activists.

Friday, 25 September 2015

UN: Riyadh stop the death sentence of Arab Spring protestor

Source: Asia News (23 September 2015)

Ali Mohammed al-Nimr was under age and in high school in 2012 when he joined the protests in the eastern city of Qatif. United Nations officials say he was subjected to violence, torture and abuse by the police; the confession was extorted by force. He faces beheading and crucifixion. In 2015 the Executioner has already killed 134 people in the Saudi kingdom.

UN officials, human rights experts are appealing to the authorities in Riyadh to put a stop to the execution of a young man accused of joining a criminal gang after having participated in the Arab Spring protests when he was a minor. Ali Mohammed al-Nimr was still attending high school when, in 2012, he joined those who were demonstrating to demand reforms and greater democracy in Qatif, a town in the eastern part of the kingdom.
In an official statement the UN officials say the young man was repeatedly subjected to torture, abuse, forced to confess and did not receive adequate legal assistance before and during his trial. His appeal was conducted "with a total disregard of international standards".

"Every judgment - the UN report says - that imposes the death penalty on persons who were minors at the time, and their effect, is incompatible with the international obligations assumed by Saudi Arabia.

Meanwhile, the young man is locked up on death row, and "could be executed at any time." After decapitation, the boy will be crucified by the authorities as a "warning against the criminals."
In addition to the conviction for joining a criminal gang, Ali Mohammed al-Nimr was also indicted for attacking the police. Two other people, also minors at the time, could soon end up in the hands of the Executioner always in connection with protests in Qatif.

Activists and human rights groups say that between January 1985 and June 2015, Saudi Arabia executed at least 2,208 people, about half of them foreigners; among those killed by the Executioner are people with mental disabilities and minors. This year the number of executions has already reached 134, 44 more than in last year's total.

"We appeal to the Saudi authorities - the UN experts conclude - because a moratorium to the use of the death penalty, interrupt the execution of convicted persons and minors at the time. Finally, thorough investigations should be launched into alleged cases of torture".

Thursday, 24 September 2015

13th World Day Against the Death Penalty: Drug Crimes

The 2015 World Day leaflet provides information on the issues surrounding drug crimes and the death penalty. It also provides arguments in favour of abolishing the death penalty.


France urges Saudi Arabia to cancel death penalty for young Shi'ite

Source: Reuters (24 September 2015)


PARIS: France called on Saudi Arabia on Wednesday not to execute a Shi'ite Muslim sentenced to death over his role in anti-government protests, saying he was a minor when he was arrested.

Ali al-Nimr was given the death penalty in May after taking part in demonstrations three years ago for democracy and equal rights in Saudi Arabia's oil-producing Eastern Province.

"France is concerned about the situation of Ali Mohammed al-Nimr, who was sentenced to death even though he was a minor at the time of the events," Foreign ministry spokesman Romain Nadal said. "Opposed to the death penalty in all cases and circumstances, we call for the execution to be called off."

France does not usually comment on death penalty cases in Saudi Arabia due to their frequency. It has nurtured strong relations with Riyadh due to its tough stance on their Shi'ite rival Iran and shared positions on Middle East conflicts.

The French statement came a day after United Nations rights experts called on Riyadh to halt Nimr's "imminent execution".

Nimr was convicted of sedition, rioting, protesting and robbery in the Eastern Province district of Qatif, home to many of the Sunni Muslim-ruled kingdom's minority Shi'ites, who say they face entrenched discrimination.

Nimr, who activists said was 17 at the time of his arrest in 2012, was also convicted of chanting anti-state slogans in illegal protests and inciting others to demonstrate, according to state media.

"Saudi Arabia's plans to behead and crucify someone arrested as a child are indefensible," said Donald Campbell, spokesman for international human rights charity Reprieve.

"The international community – particularly Saudi Arabia's close allies, the UK and the U.S. – must stand with the French government and U.N. experts against this outrage, and call on the Saudi authorities to put a halt to this unjustified killing."

The conviction of Nimr, a nephew of Sheikh Nimr al-Nimr, a prominent Shi'ite cleric who is also on trial, followed that of Rida al-Rubh, 26, the son of another cleric who has been critical of the authorities.

The clerics are part of a group of around a dozen defendants on trial for their part in protests and violent unrest in Qatif, particularly in the village of Awamiya, where police officers and facilities have been attacked.

Abdul Basit: Pakistan set to hang disabled man

Source: BBC News (21 September 2015)


A paraplegic man on death row in Pakistan is set to hang on Tuesday without the authorities explaining how they will carry out the execution.

The capital punishment is due to take place despite fears over the absence of legal procedures for such a punishment.

Pakistan's prison guidelines require that a prisoner stand on the gallows in order to be hanged.

Abdul Basit, 43, is paralysed from the waist down and uses a wheelchair after becoming ill in prison.

He will become the 240th Pakistani to be executed since Pakistan reintroduced the death penalty in December 2014.

At the time, the government said it was a measure to combat terrorism after the Taliban massacred more than 150 people, most of them children, in a Peshawar school.

The condemned man was convicted six years ago of murder and was to have been hanged in Lahore last month - but this was postponed.

A court has now ordered the jail authorities to go ahead with the hanging, even though his mercy petition filed on 22 July before the president is still pending.

His lawyers argue that hanging him would constitute cruel and degrading treatment.

The prison guidelines do not cover the hanging of a paralysed person, campaigners say.

"[The] jail manual only provides for hanging as a method of execution, and lays down methods to calculate the right length of rope to ensure that hanging does not lead to protracted strangulation," Wassam Waheed, a spokesman for Justice Project Pakistan (JPP) told the BBC.

"The rules presume that the convict [can] walk up to the gallows, which is not possible in Abdul Basit's case."

A trial court issued a death warrant against Abdul Basit on Friday and ordered jail authorities to hang him on 22 September.

Both the Supreme Court and the Lahore High Court have given their consent to the execution.

The JPP has called on President Mamnoon Hussain to stop the execution and "show the world that we protect the lives of those most vulnerable in our society".

Rights groups say that there is a danger that the hanging could go wrong and end up being a breach of the prisoner's dignity - which is protected by Pakistani laws.

In a statement on Sunday the independent Human Rights Commission of Pakistan (HRCP) described the court order to hang Abdul Basit as an offence "against all norms of civilised justice" which would raise awkward questions about the Pakistani justice system and "indict the Pakistani state and society as brutal entities".

The HRCP also urged the president to stay the execution and grant him a reprieve.

Pakistan has the world's largest number of death row inmates, with more than 8,000 people reported to be awaiting execution.

It is on course to have one of the highest rates of executions in the world.

Tuesday, 15 September 2015

UN experts call for abolition of death penalty in India

Source: Gulf News India (13 September 2015)


United Nations: UN human rights experts have welcomed recommendations made by India's Law Commission to abolish death penalty with the exception of terror offences and called on Indian authorities to move towards the complete abolition of capital punishment.

"The conclusions and recommendations of the Indian Law Commission represent an important voice in favour of the abolition of the death penalty in India," Special Rapporteur on extra-judicial, summary or arbitrary executions, Christof Heyns said.

"I encourage the Indian authorities to implement these recommendations and to move towards the complete abolition of the death penalty for all offences," he added.

The Indian Law Commission issued its report on August 31, concluding that the death penalty does not serve as a deterrent and recommended its abolition for all crimes, except terrorism-related offences and waging war.

The Commission had been tasked by the Supreme Court to study the issue of the death penalty in India.

In its report, the Indian Law Commission recognised that, while on death row, the prisoner "suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution," and that "the death row phenomenon is compounded by the degrading and oppressive effects of conditions of imprisonment imposed on the convict, including solitary confinement".

The recommendation by the 9-member panel was, however, not unanimous, with one full-time member and two government representatives dissenting and supporting retention of capital punishment.

Special Rapporteur on torture Juan Mendez said the Indian authorities should review the findings very carefully and ratify the law.

The experts also welcomed the decision to reduce the number of crimes subject to death penalty by China.

China amended several provisions of its Criminal Law, replacing death penalty with life imprisonment for several offences, including smuggling of weapons, ammunition, nuclear materials and counterfeit currency; obstruction of duty of police; and creating rumours during wartime.

"By adopting these amendments to its criminal code, China has made progress in the right direction; this needs to be encouraged," the UN experts noted.

"These new developments in India and China are in line with the general trend towards the abolition of the death penalty at a global level, even if there are isolated moves in the opposite direction," Heyns said.

Special rapporteurs are appointed by the Geneva-based UN Human Rights Council to examine and report back on a country situation or a specific human rights theme.

Friday, 4 September 2015

Abdul Basit: Death row delay for Pakistan paraplegic

Source: BBC News (2 September 2015)


Pakistani prison officials have missed Tuesday's court deadline to explain how they would hang a paraplegic man.

Abdul Basit is paralysed from the waist down and uses a wheelchair after an illness he contracted while in prison.

He was convicted six years ago of murder but maintains his innocence. He was to be hanged in Lahore last month but this was postponed. A petition for his pardon was dismissed.

Hanging him would constitute cruel and degrading treatment, his lawyers say.

They add that this is prohibited under Pakistani and international law.

Pakistan has executed more than 200 people since reintroducing the death penalty in December 2014.

At the time the government said it was a measure to combat terrorism after the Taliban massacred more than 150 people, most of them children, in a Peshawar school.

Pakistan's jail manual gives no instructions on how to execute disabled prisoners.

A high court judge had told prison officials they had until 1 September to come up with specific steps if they were to be allowed to proceed with the execution of Mr Basit.

The BBC's Shaimaa Khalil says Mr Basit remains on death row but his sentence has effectively been stayed until the jail authorities come up with a clear plan for how they will execute him.

Executions around the world

Pakistan has executed more than 200 people since December 2014, almost all of them this year

Figures for executions in other countries in 2015 are as yet largely unavailable

In August, Amnesty International said Saudi Arabia had executed 102 people in the first six months of 2015, compared with 90 in the whole of 2014

By the end of last year, the other countries with the highest number of reported executions were Iran: 289, Iraq: 61, USA: 35, and Sudan: 23

In 2013 the numbers were: Iran: 369, Iraq: 169, Saudi Arabia: 79, Somalia: 68, USA: 39

China and North Korea refuse to divulge information on the number of executions that take place within their borders

Court acquits man after controversial death penalty case

Source: Asia One (2 September 2015)


TAIPEI, Taiwan - A defendant in a controversial death penalty case was declared innocent after his ninth appeal yesterday, exactly 20 years after his alleged crime.

Hsu Tzu-chiang is one of three men sentenced to death in 2000 for the murder of a real estate businessman on Sept. 1, 1995.

Activists and Hsu's lawyers criticised the ruling on grounds that the sentence had been based on the confessions of his co-defendants.

The Taiwan High Court yesterday overturned Hsu's seven death sentences and two life sentences, declaring him not guilty.

The case had already gone through eight appeals on repeated retrials.

Hsu, in disbelief, turned to a nearby friend after the announcement and asked, "Is it not guilty?" Upon confirming the verdict, the defendant embraced his tearful mother.

"I have waited for 20 years," he said to a crowd of supporters waiting outside the high court. The sentence can still be appealed.

Hsu and two other men were sentenced to death for the alleged murder of real-estate businessman Huang Chun-shu in 1995.

The victim was kidnapped outside his home; after his murder, his disfigured body was abandoned in New Taipei City, and then Taipei County.

During the trial, defendants Huang Chun-chi and Chen Yi-lung were sentenced based on forensic evidence, while Hsu was convicted based on their testimony.

A fourth defendant had escaped to Thailand, where he died.

Activists have criticised Hsu's sentence and said that there was security footage proving he was elsewhere during the events.

The Judicial Reform Foundation has called the case deeply flawed, saying it demonstrates the need to implement a jury system in Taiwan to reduce judicial bias.

After the initial sentencing, one of the two defendants said he had accused Hsu as a way of getting revenge and that Hsu was innocent.

In 2001, Taiwan's Control Yuan released a report on Hsu's conviction that condemned the sentencing.

Hsu's case is one of the longest-running murder cases in Taiwan's history, and his acquittal falls exactly 20 years after the alleged murder. Huang Chun-chi and Chen Yi-lung remain on death row.

Panel favours abolishing death sentence in India

Source: New Straits Times (1 September 2015)


A law panel tasked by India's Supreme Court to look into the death penalty has recommended that it be abolished for all crimes except those related to terrorism as it no longer has a deterrent effect.

While its recommendation could lead the government to consider taking a look at a partial ban, the final decision rests with the government.

"The death penalty does not serve the… goal of deterrence any more than life imprisonment," the commission said in its report.

"Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance,'' added the executive body that deals with legal reform.

The commission suggested that instead of relying on the death penalty - which is carried out by hanging - the government and courts should look at compensation schemes and rehabilitation for victims, witness protection programmes and police reforms to raise the quality of investigation.

"It is for the government to make a call. The report is to start a debate and at some point make a clean break from the past,'' the commission's chairman, Mr A.P. Shah, a retired justice, told a press conference yesterday.

India is one of about 58 countries that still have the death penalty.

Its lower courts routinely hand down the death sentence, but this is usually commuted to life by the time it reaches the Supreme Court, which upholds the death penalty only in "rarest of rare" cases.

According to National Crime Records Bureau statistics, 4,321 out of 5,776 death penalties were commuted to life sentences between 2001 and 2011.

No execution was carried out between 2005 and 2011.

In the past three years, there were three executions, all terrorism-related cases.

Mohammed Kasab, the lone surviving gunman in the 2008 Mumbai terror attacks, was hanged in 2012, followed in 2013 by Afzal Guru, who was convicted of the 2001 terror attack on the Indian Parliament. In July, Yakub Memon was executed for his role in the 1993 Mumbai serial blasts.

Human rights activists, while welcoming the law commission's report, said the Indian government was not ready for a complete ban, given India's deep concerns about being a terrorism target.

"It is recommendatory in nature but it basically makes it clear that the government will have to take a position on this,'' said Mr Suhas Chakma, director of the Asian Centre for Human Rights. "I don't think India is ready to abolish the death penalty entirely. If it is restricted to terror cases then there is hope for a forward movement."

The report comes at a time when there has been an intense debate on the merits of the death penalty following Yakub's execution.

Media organisations such as The Times of India and The Hindu have spoken out strongly in favour of abolishing the death penalty.

Political parties such as the ruling Bharatiya Janata Party (BJP) and its rival Congress party remain deeply divided on the issue.

BJP MP Varun Gandhi noted in a magazine article last month that 94 per cent of death-row convicts are either Dalits, formerly considered "untouchables", or from minority communities. He said the death penalty is an "anomaly" that needs to be corrected.

While the report was approved by a majority of the commission's nine members, three of them favoured retaining the death penalty, reflecting the deep divide in the country.

Despite the divisive nature of the issue, the commission's report argued that it "is logical we move towards abolition".

Wednesday, 2 September 2015

What Judicial Responsibility Must Mean in the Age of the Death Penalty

Source: The Wire (29 August 2015)


The phrase "judicial responsibility" means not just the responsibility to uphold the law; it means the overarching responsibility to do justice. In Glossip v. Gross—which came up before the United States Supreme Court recently— a group of prisoners on death row in Oklahoma contended that the method of execution now used by the state violated the Eighth Amendment (which bars 'cruel and unusual punishment') because it creates an unacceptable risk of severe pain. They lost. Five judges did not agree with them.

Speaking for the minority of four, Justices Sotomayor and Breyer wrote dissenting opinions. Breyer spoke of judicial responsibility after listing out the factors which argue against death penalty. They are the lack of reliability, arbitrary application of the sentence, delay, lack of penological purpose. You can find these in any country where the law provides for death penalty, not least in India.

Rather than trying to "patch up the death penalty's legal wounds one at a time," said Breyer, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."

We in India need to ask the same question.

Which is the right time to speak about the morality and correctness of death penalty? When a convict is facing the gallows and there are last minute reviews or pleas for pardon with the media going full blast about the bestiality of the crime and the victims praying for justice, the climate is surcharged. Not the right time. Once the convict is executed, there are human rights activists shouting that India has a black mark and others asking then what about the human rights of the deceased/s; the media is milking the moment to the last drop. Not the right time. When nothing is happening, no death row prisoner is waiting for the noose, the climate is calm, and no one is interested. Not the right time. So when do we engage the public with the question of whether a civilised society should take lives in the name of the people? That is what the state does, when it executes the death sentence.

"Choose life and then you and your descendants shall live" (Deuteronomy 30:19). Choose Life. This is the title of a book which records the dialogue between Daisaku Ikeda and Arnold Toynbee during the years 1972-1974 covering a wide range of issues including the death penalty. Ikeda says, "I feel that life, as an absolute entity worthy of the profoundest respect, must never be treated as a means of achieving anything other than life itself. The dignity of life is an end in itself." Toynbee responds "No human being has a moral right to deprive another human being of his life." Someone may ask what if that human being deprived other human beings of their lives, then what? Surely we are not in junior class shouting, "But he beat me first, Miss!" Yes, the convict took away lives and is guilty of murder. That is precisely why we are discussing the death penalty in the first place.

The death penalty is irreversible. The Innocence Project is a non-profit organization which demonstrates by DNA testing the "judicial errors" in death row cases. If an error is proved beyond doubt but the execution has been carried out, how does one compensate the 'victims' of judicial process? The executed cannot be resurrected. The executed cannot be reformed.

In 2000, the Madras High Court (Justice Sirpurkar and I) heard an appeal against the death penalty. A school-girl was raped and murdered by three persons. It was a sensational case. The trial court found it to be a case of the 'rarest of rare' and sentenced them to death. We commuted the sentence to life. I received several letters asking me if I was a woman, since the deceased was a victim of sexual violence. There was no platform from where I could say that we had not acquitted the accused, but we had commuted the sentence, for valid reasons regarding the circumstances of the accused. Sometime in 2014, I read a news item about a project in Tamil Nadu conducting courses for prisoners to rehabilitate and equip them with life skills. Among the life-term prisoners who had secured gold medals and state ranks was the first accused in the above case. This is not submitted as an argument against the death penalty, but as an argument for upholding the right to life. The state punishes not only as a deterrent, but to reform too.

There are many reports of studies in the US which indicate that the factors that circumstances that ought not to affect the imposition of the death penalty—such as race, gender or geography—often do. In India too, such extraneous factors affect the application of the death penalty. Count the number of persons who can afford the best legal counsel and have gone to the gallows and you will have your answer. Then is it judicially responsible to apply such a random game-changer when it comes to life and death?

The Coimbatore bomb blast is a classic case in which death penalty could have been awarded. Nineteen bombs exploded in the city on February 14, 1998, resulting in the deaths of 58 persons and injuries to 250 persons and huge loss to private and public properties. In all, 166 persons faced trial but the court did not sentence even one to death. Revisions were filed seeking enhancement of sentence. They were dismissed. The trial court had given very responsible reasons for not giving the death penalty though the public prosecutor had pleaded that this was a most fitting case for capital punishment. The court said that none of the accused was granted bail during the trial and this deprived them of securing the best legal counsel and collecting all the relevant materials to support their case. The long period in jail resulted in internal friction amongst the accused themselves which again was counter-productive to their conducting the case. The manner in which witnesses were examined and the cross-examination conducted had also caused prejudice. Only a few of the advocates who appeared for the accused had given their best to defend them. The accused had pleaded that the offence was a result of the sense of isolation they felt and the consequent loss of faith in the system. These circumstances weighed with the trial court. Each one of the reasons is an aspect of fair and equal access to justice—ensuring which is undeniably the responsibility of every judge. I was one of the judges who heard the appeals before the Madras High Court and hence my familiarity with the facts.

In the Naroda Patiya judgment, the trial court explained why the death penalty was not given. If there was a case which the court could have easily called the rarest of rare it was this. Yet the judge cited the rights of those on death row, the restricted use of the death penalty in a progressive society, and the fact that use of the death penalty undermines human dignity, to support her decision not to grant capital punishment.

Both cases—Coimbatore and Naroda Patiya— are scarred by the death of innocent victims. No one was awarded the death penalty and both the trial judges gave reasons for their decisions. But in similar cases, the death penalty has been awarded. This means there is an inconsistency in sentencing even in cases where numerous persons have been killed.

There are the victims who demand justice. It is allegedly to assuage their feelings that society insists on the death penalty. In a 1985 Stanford Law Review article, Lynne Henderson has written, "Common assumptions about crime victims—that they are all "outraged" and want revenge and tougher law enforcement—underlie much of the current victim's rights rhetoric. But in light of the existing psychological evidence, these assumptions fail to address the experience and real needs of past victims."

According to her study, the promise of an execution offered only a seemingly appealing mechanism to assign blame and to channel rage. Actually the crime victims felt that the endless repetition of their stories, the formal legal rules, and the years lost between appeals only served to increase stress and delay healing. Then is it only the "Roman crowd" which seeks a vicarious taste of blood?

In Justice: What is the Right Thing To Do?, Michael Sandel wonders if morality does not mean "something to do with the proper way for human beings to treat one another." Toynbee and Ikeda agree that human life as an entity deserves absolute respect. Sandel asks "Is morality a matter of counting lives and weighing costs and benefits, or are certain moral duties and human rights so fundamental that they rise above such calculations?" The Right to Life is not a subject-to right. It is fundamental because it is life which is fundamental.

In times of death penalty, I believe courts should close their ears to the ambient din. While hearing the case with all the patience at their command, courts must remember that the right to life rises above weighing costs and benefits, that as long as there is life, there is room for reform, that justice without delay provides better closure to victims than execution after decades, that every system is fallible and life is too precious to hang on to a fallible process. So it is better to be responsible and to Choose Life.