Abolish Death Penalty India: Research Studies

Wednesday, May 20, 2009

Research Studies

Lethal Lottery: The Death Penalty in India

A report studies Supreme Court judgments in death penalty cases in India from 1950 to 2006 and uncovers many inconsistencies.

THERE is very little officially compiled information on the award of capital punishment in India. This makes the task of understanding the relationship between the punishment and the incidence of crime for which death could be awarded as punishment challenging. Add to this the phenomenon of conflicting judgments coming from trial and high courts and from the Supreme Court itself on the nature of the crimes that can attract this penalty, and the challenge facing the researcher is likely to be insurmountable.

A recent study, jointly produced by Amnesty International India and the People’s Union for Civil Liberties Tamil Nadu & Puducherry, fills the void and exposes the inconsistencies in these judgments. The report was researched and written by Bikram Jeet Batra, consultant to Amnesty International India. Part I, written by Dr. V. Suresh and D. Nagasaila of the PUCL-TN&P, sets the tone for the entire report with its focus on the need to re-examine the death penalty in India.

Part II of the report cites Prison Statistics India 2005, compiled by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, and states that there are 273 persons sentenced to death, as on December 31, 2005. But it does not clarify whether the figure refers to those whose sentences were passed by a trial court or those whose sentences were upheld by a High Court or the Supreme Court or whose mercy petitions were pending or had been rejected. In November 2006, Minister for Home Affairs Shivraj Patil told Parliament that there were 44 mercy petitions before the President, some of which had been pending from 1998 and 1999.

The NCRB states that there were 25 executions between 1995 and 2004. Twenty-four of these took place between 1995 and 1998, pointing to the fact that executions have decreased in the past decade. The NCRB has admittedly no data relating to the death penalty before 1995. The report cites a newspaper article (which itself refers to the 1967 Law Commission report) that suggests that at least 1,422 people were executed between 1954 and 1963 alone. The report notes that the Supreme Court admitted in judgments upholding the constitutionality of the death penalty that there had been no systematic study on whether this penalty was a greater deterrent to murder than the penalty of life imprisonment.

The research for this report involved the study of over 700 judgments reported in law journals between 1950 and 2006. In the first phase ending in 1975, the study found that Supreme Court judgments relied on a rather abstract phrase – “ends of justice” – to disguise the arbitrariness in the use of judicial discretion in sentencing. Thus, judgments regularly concluded with the mere assertion that the death sentence was being commuted or confirmed “to meet the ends of justice”. The study found that there were no clear, systematic principles governing sentencing.

1. errors in consideration of evidence -- most death sentences handed down in India are based on circumstantial evidence alone. In a 1994 Supreme Court appeal, the Court noted the main witness's memory constantly improved from his statement a few days after the incident to the trial three years later

2. inadequate legal representation -- concerns include "lawyers ignoring key facts of mental incompetence, omitting to provide any arguments on sentencing, or failing to dispute claims that the accused was under 18 years of age at the time of the crime despite evidence to the contrary"
anti-terrorist legislation -- concerns include "the broad definition of 'terrorist acts', insufficient safeguards on arrest, and provisions allowing for confessions made to police to be admissible as evidence"

3. arbitrariness in sentencing -- "in the same month, different benches of the Supreme Court have treated similar cases differently, with mitigating factors taken into account or disregarded arbitrarily"

4. failure of the courts and state authorities to consistently apply the procedures supposed to limit the death penalty to the "rarest of rare" cases.

In view of these inconsistencies, the report calls for an immediate moratorium on executions, pending abolition of the death penalty in India. The report will have served its purpose if it leads to introspection within the legislature, the executive and the judiciary on the relevance of the death penalty in India.

This article has been abstracted by reviewing the report "Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-2006 was published by Amnesty International India and the People’s Union for Civil Liberties (Tamil Nadu & Puducherry)and an Article that was published in FRONTLINE Volume 25 - Issue 13 :: Jun. 21-Jul. 04, 2008
by V.Venkatesan

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Wednesday, May 20, 2009

Research Studies

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