Abolish Death Penalty India: They haven’t found a hangman yet, have they?

Sunday, June 19, 2011

They haven’t found a hangman yet, have they?

Vijay (Hiremath) calls me up and says, “Did you read that Mahendra Das and Prof. Bhullar’s mercy petitions have been rejected by the President’s office?” I was on one of my fieldwork trips and was shocked to hear this news! He put me in touch with Yug Chaudhry who wanted to work on this case. We contacted the prison and then the relatives of Mahendra Das. Yug worked on the draft and contacted several others. He asked me a day before we left for Guahati, “Reena will you come also for this hearing?” I thought I must go because I knew the family by then and I had interviewed Mahendra Das just a few weeks before his petition was rejected by our the $President. We reached Guahati High Court next day i.e. 7th June 2011 at 12:45 pm and the petition was already filed by Adv. Arup Borbora. We met all the lawyers and also the relatives. Das’s mother – Kusum Bala Das cried silently most of the time. His sister told me, “If anything happens to our brother, we all will kill ourselves.”
In the meantime,Adv. Arup Borbora asked for a special bench of two judges to be created and it was done as this was a special matter. The court proceedings began at 3:45 where a special bench of judges (Justice BP Katakey and Justice BK Sharma) was constituted to hear this matter as the Chief Justice was out of town. The counsel on behalf of the mother were Senior Advocates A.K. Bhattacharya, Arup Borbora and Yug Chaudhry. We were in Court Room No. 4 where the relatives asked me sit beside them. I sat next to them of course - more than for them, it was for my own contentment. The counsel Adv. Bhattacharya spoke and his opening line was, “There is a lawyer named Yug Chaudhry coming all the way from Mumbai for this.” The judge immediately said, “So what difference does it make?” Adv. Bhattacharya’s response was “Yes it makes a difference; it makes a difference because nobody in Assam came forward for this and it took a Human Rights advocate from Mumbai to do this. So it makes a difference” The judge had to agree.
The arguments went on. The judge asked, “So why have you come to the High Court? Why not go to the Apex Court?” Adv. Bhattacharya’s response every time was really good. He said, “Yes we should go to the Supreme Court. But who would go? This old mother? (Pointing at the mother) Do you think she’s in a capacity to go? Even if she goes, don’t you think that Mahendra Das will be hanged by then?” The question raised was to seek an explanation for the inordinate delay from President’s office.
The judge asked the State lawyers and all they could say was “How can we not listen to the Supreme court’s orders?” They have been asked to file a reply before the next hearing on 17th June. The judges gave a very positive order stating Triveniben (SCR p.596: SCC p.357: SCC (Cri) p.474, para 20). Till then the proposed execution of the man remained in suspension.
The next hearing took place on 17th July 2011. The family came to the court. We didn’t know till our matter came up that the State had filed a reply. However the Centre did not and hence we were given another date which is 21st July 2011. The family invited me to their home. I couldn’t say no. I travelled for three hours to reach their house. Mahendra Das’s house is in a pitiful state. A heavy rain can demolish the whole structure. The family has a hand to mouth existence. I wonder how they managed to come to Guahati High Court for the hearing spending so much of money! The mother spoke only in Assamese. His sister translated it for me. She asked me, “So when is my son going to be released?” I didn’t have an answer. The sister asked me, “So what will happen? Will his sentence be commuted to life?” I said, “We all are hoping for that but one simply cannot say ‘It will be done’. There is a great possibility that they might just reject it in the High Court. But we all still hope that the Court and the State of Assam will do everything in their power to commute this sentence”. She again asked, “But they haven’t found a hangman yet, have they?” I couldn’t bring myself to lie, I said, “If I am not mistaken, they have found a hangman from Meerut”. We all were silent for a moment. I again told them that, “We all hope that our country realizes that it is barbaric to execute a person after 15 years in the prison”. The relatives dropped me back in Guahati, asked me to come back again when Mahendra Das is home. I nodded and left.

RMG

No comments:

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

Sunday, June 19, 2011

They haven’t found a hangman yet, have they?

No comments:

Post a Comment

Followers