Report

Amnesty asks India to abolish death penalty

Afzal Gurus trial did not conform to Indias obligations under international human rights law
The human rights watchdog, Amnesty International, on December 13, 2012, asked India to abolish death penalty and stop further executions. It also sought commuting of death sentences to imprisonments. The Chief Executive of Amnesty International, G Ananthapadmanabhan, in a letter to the Indian President, Pranab Mukherjee, after execution of Ajmal Kasab on November 21, wrote that Kasab had committed grave and serious offences, and Amnesty had consistently expressed its sympathies and condolence to the victims of his actions and their families. However, by executing him, the Indian government has violated the internationally recognized right to life and signaled a step away from the regional and global trends towards abolition of the death penalty, he said. So far, 140 countries in the world have abolished the death penalty in law or practice. Most recently, Mongolia became the 140th country to join this group on 13 March, 2012, by becoming a state party to the Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at the abolition of the death penalty. In the Asia-Pacific region, 17 countries have abolished the death penalty for all crimes, 10 are abolitionist in practice and one - Fiji - uses the death penalty only for exceptional military crimes. Ananthapadmanabhan said that the Amnesty was concerned about the manner in which the Indian authorities carried out Kasabs execution on 21 November, 2012. A notification by Indian Ministry of Home Affairs, published on the same day, stated that you had rejected his petition for mercy on 5 November, he added. He said that according to reports, Ajmal Kasab himself was only informed of this rejection on 12 November. It is unclear whether he was aware of possibility of seeking a review of the decision. Information about the rejection of the petition for mercy and the date of execution was not made available to the public until after the execution had been carried out. Authorities in India have made public claims that this lack of public announcement and secrecy surrounding the execution were to avoid intervention by human rights activists, he stated. The Amnesty Chief Executive said that this practice was in contrast to the previous executions carried out in India over the past 15 years. Information regarding the executions of Dhananjoy Chatterjee (2004), and Shankar (1995), for example, was accessible to the public in advance of the execution, he pointed out. Ananthapadmanabhan maintained that transparency on the use of death penalty was among fundamental safeguards of due process that prevent the arbitrary deprivation of life. Making information public with regard to legislation providing for the death penalty as well as its implementation allows for an assessment of whether fair trial and other international standards are being respected. In resolution 2005/59, adopted on 20 April, 2005, the UN Commission on Human Rights called upon all states that still maintain the death penalty to make available to the public information with regard to

the imposition of the death penalty and to any scheduled execution, he added. He said that Amnesty was disappointed that the Indian State had chosen to carry out Ajmal Kasabs execution in this manner, especially as secrecy was not the practice in execution in the country. He further stated that Amnesty welcomed the recent commutation of Atbirs death sentence on 15 November, 2012. The petition for mercy of Saibanna Ningappa Natikar is, however, still pending before the Indian President. Fourteen former judges recently petitioned the President to commute 13 death sentences that they believe were wrongly imposed. The case of Saibanna Ningappa Natikar, sentenced to death for murdering two members of his family in 2005, was one of the cases identified by the judges, he said. Amnesty is concerned about a further nine petitions for mercy involving 14 individuals that have been sent to the Ministry of Home Affairs for consideration for a second time, which we understand is usual practice when there is a new minister in office, the Amnesty Chief Executive said. On December 10, 2012, Indian Home Minister told reporters that he will review the petitions before him after the end of the winter session JANUARY 2013 23

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of Parliament. One of these petitions concerns Mohammad Afzal Guru, who was sentenced to death for his alleged involvement in the 2001 Parliament attack. Mohammad Afzal Guru was tried by a special court under the Prevention of Terrorism Act. Amnesty has found that these trials did not conform with Indias obligations under international human rights law, he added. Amnesty opposes death penalty in all cases without exception, regardless of the nature or circumstances of the crime; guilt, innocence or other characteristics of the individual, or the method used by the state to carry out the execution, Ananthapadmanabhan said. AI opposes it as a violation of the right to life as recognized in the Universal Declaration of Human Rights and the ultimate cruel, inhuman and degrading punishment, he added. The Amnesty official said that the desirability of the abolition of the death penalty had long been recognized in international law and standards. The International Covenant on Civil and Political Rights (ICCPR), to which India is a State Party and which allows for the use of the death penalty under certain circumstances, clearly states in Article 6.6 that no provision in Article 6 should be invoked to delay or to prevent the abolition of capital punishment, he emphasized. Ananthapadmanabhan pointed out that the UN Human Rights Committee, the expert body established under the ICCPR to monitor its implementation, has said in its General Comment no. 6 of 30 April, 1982, that Article 6 of the ICCPR refers generally to abolition in terms which strongly suggest that abolition is desirable. The committee concluded that all measures of abolition should be considered as progress in the enjoyment of the right to life. As a state party to the ICCPR, India has a legal obligation to comply with the provisions of the treaty, he said. The Amnesty Chief Executive stated that the use of death penalty in India was riddled with systemic flaws. Of particular concern are: the broad definition of terrorist acts - for which the death penalty can be imposed - insufficient safeguards on arrest, obstacles to confidential communication with counsel, insufficient independence of special courts from executive power, insufficient safeguards for the presumption of innocence, provisions for discretionary closed trials, sweeping provisions to keep secret the identity of witnesses, and limits on the right to review by a higher tribunal. Ananthapadmanabhan said, On behalf of Amnesty International, I urge Indian President to commute all death sentences to terms of imprisonment, immediately halt plans to carry out further executions, and establish an official moratorium on executions as the first step to abolishing the death penalty. He added that wherever mercy petitions had been rejected, the government should respect the practice of promptly informing the individual, his/ her lawyers, his/ her family, as well as the public, of the decision, reasons for the decision, and proposed date of execution, of any scheduled execution. On December 21, 2012, Amnesty International urged the Indian President, Pranab Mukherjee, to reject new amendments to antiterror law, Unlawful Activities (Prevention) Act (UAPA), that failed to meet international human rights standards. New amendments to Indias principal anti-terror legislation passed by Parliament do not meet international human rights standards and are likely to lead to further human rights violations. We urge the President of India to therefore reject these amendments; and Parliament, to amend the law to remove or revise existing provisions, which have allowed the authorities to violate human rights with impunity, an AI spokesman said in a statement posted on the website of the organisation. He said that the amendments to the UAPA were proposed without wide-ranging consultations with civil society and passed without much debate by the lower and upper houses of Indian Parliament on 30 November and 20 December respectively. The UAPA was last amended in December 2008 after the Mumbai attacks in which 170 people were killed. Amnesty acknowledges that Indias authorities have duty to take effective measures to ensure security of the population including against attacks such as the one that occurred at Mumbai. However, security concerns should never be used to jeopardize peoples human rights as established in international law and standards, he added. The spokesman said that human rights organizations had highlighted instances where the UAPA had been used, with fabricated evidence and on false charges, to detain and try persons defending the rights of Adivasi and Dalit communities and the poor and peacefully exercising their rights to freedom of speech and freedom of association. He maintained that with the latest amendments, it was likely that the UAPA would be further used to curb such dissent. The spokesman said that the Amnesty was concerned that the new amendment, which increased the period of the ban on specific unlawful organizations from two to five years, could lead to further abuses since an initial determination of what is unlawful could be made and the ban applied well before any confirmation by a tribunal. This move could further restrict freedom of association and the freedom of speech as guaranteed under Indias Constitution and the International Covenant on Civil and Political Rights (ICCPR), which India has ratified, he added. JANUARY 2013 24

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