Abolish Death Penalty India: A plea for Sarabjit

Tuesday, August 18, 2009

A plea for Sarabjit

At an informal meeting between a group of Indians and Pakistanis in the Swiss village of Caux, the venue of the second forum of human security in July 2009, one suggestion put forward was for the governments in New Delhi and Islamabad to abolish capital punishment.

It was argued that it would help improve relations between the two neighbours. Yes it would, if this suggestion were to be taken seriously.

Given the number of prisoners from each country languishing in the jails of the other at any point in time and the fact that a number of them have been on death row for years makes this an issue worth taking up. The charge most frequently slapped on such prisoners is of indulging in acts of terrorism or ISI/RAW-inspired espionage. Invariably the fate of one man is tacitly interwoven with that of another.

This strategy results in a tit-for-tat game with the two sides retaliating to each other’s actions in similar fashion. If there is a man linked to India on death row in Pakistan, be assured there will be one awaiting a similar fate in India. Today, Mohammad Afzal Guru stands convicted in India for storming the Lok Sabha in December 2001. In Kot Lakhpat jail, Lahore, we have Sarabjit Singh arrested in 1990 and convicted of carrying out serial bomb blasts in Faisalabad, Kasur and Lahore.

Sarabjit’s case will be coming up in court shortly and there are many reasons why thousands in Pakistan, as well as India, feel that he should not be hanged.

Sarabjit was sentenced to death in 1991 by Lahore’s anti-terrorism court. He filed a petition before the Supreme Court which was dismissed in 2005 on the grounds that it was time-barred. An appeal to review the petition was again dismissed in June 2009 when the government-appointed lawyer for the convict failed to appear before the court on two consecutive occasions when the case came up for hearing.

Now a new lawyer, Awais Shaikh, has been appointed and he is committed to fighting his client’s case. A fresh application has been filed before the Supreme Court seeking review of its earlier decision to dismiss Sarabjit Singh’s petition challenging his death penalty. A mercy petition is also being made to the president for clemency. The former Indian cricket captain, Kapil Dev, has collected 100,000 signatures calling for reprieve for Sarabjit and the same is being done on this side of the border.

Sheikh’s recent visit to India and the warm welcome he received there symbolises the popular sentiment in that country in favour of Sarabjit’s reprieve, as pointed out by the foreign minister.

Thus Sarabjit’s case has now acquired the dimension of an India-Pakistan issue which can be a factor in promoting amity among the people of the two countries. True, there are people lacking compassion who would argue in support of an eye for an eye and stern punishment for those who have ‘wronged’.

But the problem with capital punishment is that it is a frightfully ‘ultimate’ action that is irrevocable. Can one really be sure if the convict has really committed the deed? Whether a man is judged innocent or guilty depends on so many factors beyond his control. The interpretation of the law, the quality of legal assistance the defendant is provided, the efficiency or otherwise of the prosecution, even the political, international and social circumstances at the time the alleged crime was committed etc. All of these go into the making of a case for or against the person in the dock.

In Sarabjit’s case it is said to be based on conjectures and surmises. His name is disputed and is not even cited in the FIR. Given factors such as these, jurists now regard the death penalty to be an anachronistic punishment that has, to use Amnesty International’s words, “no place in a modern criminal justice system”. And the main question to be asked is, has capital punishment really deterred serious crime?

One doesn’t have to repeat all the arguments advanced by the opponents of capital punishment over the decades that have been so convincing that 133 governments have seen the wisdom of abolishing the death penalty. It is time others followed suit. In Pakistan’s case it is all the more difficult to condone what can be described as a lapse on the part of the government.

Last year, on the occasion of Benazir Bhutto’s birthday, Prime Minister Gilani had promised the National Assembly that all prisoners on death row in Pakistan would have their sentences commuted to life imprisonment. This proposal was approved by the cabinet and reaffirmed by President Zardari when he took oath of office.

Why hasn’t this promise been fulfilled? Here is an opportunity for the government to show its commitment to two causes — that of human rights and that of peace in South Asia. The fact is that Sarabjit’s case has a direct bearing on India-Pakistan relations. The Indian government has been following the case closely, and has appealed a number of times to Islamabad to commute Sarabjit’s sentence to life imprisonment or grant him clemency.

Significantly, last year Sarabjit’s family members were granted visas to enable them to visit him in prison. It was then that he met his younger daughter for the first time. She was born after he had been arrested when, according to his family, he had strayed into Pakistani territory in a state of drunken stupor. His hanging was first put off for a month in April 2008 and then indefinitely.

The political implications of such cases, that also have strong humanitarian undertones, have not escaped public notice. Last year another Indian, allegedly a spy, Kashmir Singh, was released after 35 years in Pakistani prisons. Why not Sarabjit Singh who has already spent 18 years behind bars and was allowed consular access only four years ago?

(Source: By Zubeida Mustafa
Wednesday, 19 Aug, 2009 | 08:41 AM PST |
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/16-a-plea-for-sarabjit-hs-04
accessed on 19th August 2009)

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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

Tuesday, August 18, 2009

A plea for Sarabjit

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