INDIA: DEATH WITHOUT THE RIGHT TO APPEAL

In its report, “India: Death Without the Right to Appeal”, Asian Centre for Human Rights (ACHR) stated that India was 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 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.
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.
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.