ACHR WEEKLY REVIEW

Embargoed for: 31 August 2015
Review: 247/15

India ought to abolish death penalty to counter terror


Asian Centre for Human Rights welcomes the draft report of the Law Commission which advocates for abolition of speedy abolition of the death penalty from the statute books, except in cases where the accused is convicted of involvement in a terror case. The Law Commission of India is expected to submit the report to the Supreme Court of India and the Government of India today i.e. 31st August 2015.

However, ACHR is of the considered view that India should abolish death penalty even in terror cases in order to counter terror through prosecution of the suspects.

The execution of three terror convicts i.e. Ajmal Kasab[1], Afzal Guru[2] and Yakub Abdul Razak Memon[3] in the last three years is likely to seriously impact India’s requests for extradition from a number of countries which have abolished death penalty. The European Union (EU) had been reeling under intense pressure not to deport any suspect facing death penalty to India since imposition of death penalty on Devender Pal Singh Bhullar following deportation from Germany.[4] The EU is unlikely to extradite any terror suspect without guarantees from the Government of India that death sentence shall not be imposed on the deportees. Following the death sentence on Bhullar, the jurisprudence against deportation without guarantees for non-imposition of death sentences has further been strengthened across Europe. India had to give assurance to Portugal that Abu Salem shall not be given death sentence for his deportation to India.[5]

As of 31st July 2015, the Central Bureau of Investigation (CBI) has issued about 650 red corner notices[6] either to face prosecution or to serve a penal sentence. Of these, 192 wanted persons have been charged under laws that provides for death penalty as punishment such as under the Arms Act of 1959[7], Indian Penal Code of 1860[8], the Maharashtra Control of Organized Crimes Act of 1999[9], the Narcotic Drugs and Psychotropic Substances Act of 1985 [10], the Unlawful Activities Prevention Act, 1967 (UAPA)[11], and the Terrorist and Disruptive Activities (Prevention) Act of 1987[12] and the Prevention of Terrorism Act of 2002.[13] Out of 192 wanted persons, 124 are wanted for committing terrorist offences.[14 

A total of 140 countries have abolished death penalty including 98 countries which abolished death penalty for all crimes while seven countries have abolished capital punishment for ordinary crimes and 35 countries are abolitionist in practice.[15] Further, a total of 158 countries have ratified the UN Convention Against Torture which prohibits return ("refouler") or extradition of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.[16] Regional human rights instruments such as the European Convention on Human Rights[17] bar members of the European Union from extraditing suspects if they face capital punishment. The national courts across the world have already established the jurisprudence against extradition of suspects facing death penalty.

The European Court on Human Rights in Soering v. United Kingdom (1989) held that the United Kingdom's extradition of a German national to face capital murder charges in Virginia would violate its obligations under Article 3 of the European Convention on Human Rights, which prohibits cruel, inhuman, or degrading treatment or punishment. The Court's decision was based on its review of death row conditions and the anticipated time that Soering would have to spend on death row if sentenced to death which amounts to torture. In compliance with the Soering decision, the U.K. sought and received assurances from the United States that the state of Virginia would not impose a death sentence. Thereafter, Soering was extradited, convicted, and sentenced to life.[18]

In Judge v. Canada, Communication No. 829/1998 (U.N. Doc. CCPR/C/78/D/829/1998 (2003), the United Nations Human Rights Committee found that Canada had violated article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) by deporting Roger Judge to the United States to face a death sentence in 1998. Roger Judge had been sentenced to death in Pennsylvania, but escaped from prison and fled to Canada. While there, he was convicted of two robberies and sentenced to ten years. In 1998, Canada deported him to the United States to serve his death sentence. The Committee concluded that an abolitionist country violates the right to life protected by Article 6 of the ICCPR when it deports a detainee to the United States without seeking assurances that the death penalty will not be carried out.[19]

The Supreme Court of Canada likewise held that extraditions of suspects to face the death penalty are constitutionally prohibited.  In Burns and Rafay,[20] both the accused were 18 years old at the time when they allegedly murdered Rafay's parents and sister in the state of Washington and then fled to Canada. Washington charged them with first-degree murder, a capital crime.[21]

National courts in Switzerland, which is not a member of European Union, likewise made it mandatory to acquire assurances that the nation requesting extradition would not impose the death penalty. The Italian Constitutional Court has gone one step further, refusing to extradite suspects even in the face of assurances. In the case of Pietro Venezia, the Italian Constitutional Court held that under no circumstances would Italy extradite an individual to a country where the death penalty existed, despite the United States' assurances of not imposing death penalty.[22]

Under a 1978 treaty with the United States, Mexico, which has no death penalty, cannot extradite anyone facing possible execution. To get a fugitive extradited, U.S. prosecutors must give guarantees that he/she would not be executed.[23]

South African law prohibits extradition of persons to countries that impose the death penalty. On 27 July 2012, the Constitutional Court of South Africa refused to extradite two Botswana nationals, Emmanuel Tsebe and Jerry Phale, on the ground that the South African Government cannot surrender a person to a country where he or she faces the death penalty without first seeking an assurance that the death penalty would not be imposed.[24] Further on 23 September 2014, the High Court in Pretoria, South Africa, ruled that the extradition to Botswana of Edwin Samotse, a man sought on murder charges in that country was a violation of the South African Constitution and illegal.[24]

For extradition, the Philippines also seeks assurance that the death penalty will not be carried out. Article X of the Extradition Treaty Between the Republic of the Philippines and the Republic of Indonesia states, “If the crime for which extradition is requested is punishable by death under the law of the requesting Party; and if in respect of such crime the death penalty is not provided for by the law of the requested party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be carried out.[26]

Extradition remains one of the key contentions of India’s bilateral relations with the United Kingdom and Denmark.

It is a known fact that India has not been able to procure extradition of Kim Davy, main accused in Purulia arms drop case, as India is not a ratifying party to the United Nations Convention Against Torture. The Danish government had decided on 9 April 2010 to extradite Kim Davy to India[27] but the Danish High Court ruled against extradition of Kim Davy on the grounds that he could face mistreatment in Indian prisons.[28] The Danish authorities decided not to appeal the High Court judgement in the Supreme Court.[29] A public interest litigation was filed before the Kolkata High Court and in September 2011, the Kolkata High Court issued notices to the Ministry of Home Affairs and the CBI seeking details about the actions taken by the Government of India to ensure Kim Davy’s extradition as a Public Interest Litigation held that if the U.N. Convention against Torture had been ratified by the Government of India, it might have been possible to ensure the extradition of Kim Davy.[30] The petition appears to have been lost in the Indian judicial system. India had downgraded its relations with Denmark.[31]

On 2 May 2012, a British Court ordered the extradition of Mohammed Hanif Umerji Patel @ Tiger Hanif, an alleged associate of the underworld don Dawood Ibrahim, who has been wanted in India for his role in two terror attacks in Surat city of Gujarat in January and April 1993. In February 2010, the British authorities arrested him at Bolton, a town in north-west England, acting on an Interpol warrant.[32] Hanif could not be extradited to India so far as he claimed there was “a real risk of torture” if he is extradited.[33] In May 2015, Minister of State for Home Haribhai Parathibhai Chaudhary stated that India has made request to the British authorities for expediting Hanif’s extradition.[34] However, hanging of Yakub Abdul Razak Memon is unlikely to brighten India’s chances for securing extradition of Tiger Hanif sans assurance to not to impose death penalty.

There is no machismo in providing death sentence to counter terror as often portrayed by the Government of India whether it is of the United Progressive Alliance or the National Democratic Alliance. That Abu Salem, accused of actively participated in transporting and distribution of smuggled sophisticated arms and ammunitions in the beginning of 1993[35] and an accused for criminal conspiracy in the serial Bombay Bomb Blast cases of 12 March 1993 is still being tried and shall not go to the gallows because of the assurance given by India to Portugal while Yakub Abdul Razak Memon had been hanged for the same offense explains India’s adhoc approach to counter terrorism. It is the fear of the law, not necessarily death penalty, that can act as deterrent.

India ought to abolish death penalty if it is serious about widening its fight against terrorism.



Endnotes:

1. Ajmal Kasab was executed in Pune, Maharashtra on 21 November 2012. Some of the major charges in which Ajmal Kasab was found guilty were: conspiracy to wage war against the Government of India; collecting arms with the intention of waging war against the Government of India; waging and abetting the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; criminal conspiracy, common intention and abetment to commit murder; committing murder of a number of persons; attempt to murder with common intention; criminal conspiracy and abetment; abduction for murder; robbery/dacoity with an attempt to cause death or grievous hurt; and causing explosions punishable under the Explosive Substance Act, 1908.

2. Afzal Guru was executed in Tihar Jail, Delhi on 9 February 2013. The charges against which he was convicted by the designated POTA Court were Sections 121, 121A, 122, Section 120B read with Sections 302 & 307 read with Section 120B of the IPC, sub-Sections (2), (3) & (5) of Section 3 and Section 4(b) of the POTA and Sections 3 & 4 of the Explosive Substances Act, and Section 3(4) of the POTA. See State v Mohd. Afzal And Ors [2003 (3) JCC 1669]

3.  Yakub Abdul Razak Memon was executed in Nagpur, Maharashtra on 30 July 2015. The charges in which he was convicted included Section 3(3) of TADA; Section 120-B of IPC; Section 3(3) of TADA; Section 5 of TADA; Section 6 of TADA; and Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. See Yakub Abdul Razak Memon vs State Of Maharashtra

4. Devinder Pal Singh Bhullar was extradited from Germany in 1995. Germany had made strong representation for clemency for Bhullar by pointing out that “Germany has already abolished death penalty and in terms of Section 34C of the Extradition Act, 1962, death penalty cannot be imposed if the laws of the State which surrenders or returns the accused do not provide for imposition of death penalty for such crime.” See Devender Pal Singh Bhullar v. State of N.C.T. of Delhi delivered by the Supreme Court on 12 April 2013

5. In 2006, the charges framed by the Designated TADA Court, Mumbai against Abu Salem included criminal conspiracy punishable under Section 3(3) of the TADA Act and Section 120 B of the IPC read with Sections 3(2)(i), (ii), 3(3), 3(4), 5 and 6 of the TADA Act read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the IPC and offences under Sections 3 and 7 read with Sections 25 (1A), (1B), (a) of the Arms Act, 1959, Sections 9-B(1), (a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984. Abu Salem was extradited from Portugal after India assured Portugal that “Abu Salem would not be visited by death penalty or imprisonment for a term beyond 25 years” and “not be prosecuted for offences other than those for which his extradition has been sought”, among others. See Abu Salem Abdul Qayoom Ansari v. State Of Maharashtra delivered by Supreme Court on 10 September, 2010

7. Under Section 27(3) of Arms Act, 1959, which was strike down by the Supreme Court in 2012 in State of Punjab v. Dalbir Singh

8. Presently, death penalty is provided under the IPC for various offences such as Section 121, Section 132, Section 194, Section 195A, Section 302, Section 305, Section 307(2), Section 364A, Section 396, Section 376E, and Section 376A.

9. Section 3(1)(i) of the Maharashtra Control of Organized Crimes Act of 1999

10. Section 31A of the Narcotic Drugs and Psychotropic Substances Act of 1985

11. Section 16(1) of the Unlawful Activities Prevention Act, 1967

12. Section 3(2)(1) of the Terrorist and Disruptive Activities (Prevention) Act of 1987

13. Section 3(2)(a) of the Prevention of Terrorism Act of 2002

14. The red corner notices issued by the CBI are available at: http://www.cbi.nic.in/rnotice/notices.php

15. The list of countries which abolished death penalty are available at: http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries

16 . Article 3 of the  UNCAT states, “1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

17. Article 3 of ECHR states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

19. As above

20 . Minister of Justice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001).

22. Venezia v. Ministero di Grazia & Giustizia, Corte coste, 27 June 1996, 79 Rivista di Diritto Internazionale 815 (1996) please see http://www.deathpenaltyworldwide.org/extradition.cfm

23. U.S. fugitives in Mexico spared death penalty, NBCNews.com,  17 January 2008, http://www.nbcnews.com/id/22717899/ns/us_news-crime_and_courts/t/us-fugitives-mexico-spared-death-penalty/#.Vc2Rbvmqqko

24. No extradition to death penalty, 27 July 2012, Human Rights Law Centre available at http://hrlc.org.au/minister-of-home-affairs-and-others-v-tsebe-and-others-2012-zacc-16-27-july-2012/

25. South Africa: Court Declares Extradition to Death Penalty Jurisdiction Illegal, Library of Congress available at
 http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205404133_text

26. Extradition treaty between the Republic of the Philippines and the Republic of Indonesia available at http://www.chanrobles.com/rpindonesiaextraditiontreaty.htm#.Vc2WX_mqqko

27. Danish court decision on Kim Davy can encourage terrorists: India, The Times of India, 8 July 2011, http://timesofindia.indiatimes.com/india/Danish-court-decision-on-Kim-Davy-can-encourage-terrorists-India/articleshow/9151887.cms?referral=PM

28. Bhaskar Balakrishnan, “Let’s mend fences with Denmark”, The BusinessLine, 17 June 2013, http://www.thehindubusinessline.com/opinion/columns/bhaskar-balakrishnan/lets-mend-fences-with-denmark/article4823648.ece 

29. Danish court decision on Kim Davy can encourage terrorists: India, The Times of India, 8 July 2011, http://timesofindia.indiatimes.com/india/Danish-court-decision-on-Kim-Davy-can-encourage-terrorists-India/articleshow/9151887.cms?referral=PM

30. Kim Davy extradition: time sought to file affidavits, The Hindu, 15 September 2011, http://www.thehindu.com/news/national/kim-davy-extradition-time-sought-to-file-affidavits/article2453673.ece

31 . Purulia case: India downgrades ties with Denmark for Kim Davy rebuff, The Times of India, 13 July  2013 available at http://timesofindia.indiatimes.com/india/Purulia-case-India-downgrades-ties-with-Denmark-for-Kim-Davy-rebuff/articleshow/14856816.cms

32. U.K. court orders extradition of 'Tiger' Hanif to India, The Hindu, 4 May 2012, available at: http://www.thehindu.com/news/international/uk-court-orders-extradition-of-tiger-hanif-to-india/article3380893.ece