Abolish Death Penalty India: Grey area between life and death

Wednesday, August 31, 2011

Grey area between life and death

CHENNAI: So, legally speaking, what lies between life and death? A lot of grey area, really. Indian criminal jurisprudence does not prescribe death as punishment for a particular offence, however heinous the crime may be. For instance, the maximum punishment provided for in our statute book is not death. Instead, it is "death sentence or life imprisonment."

After holding a person guilty of having committed a heinous offence, a judge has neither legislative policy nor legal principles nor judicial precedents for guidance to impose an appropriate punishment. While highlighting this lacuna, legendary jurist Justice P N Bhagwati says whether it would be a mere life imprisonment or death sentence is decided by the judge's "unguided discretion". In other words, what qualifies as "rarest of rare cases" warranting capital punishment is to be decided on a case to case basis by the judges concerned.

The enormity of this observation would hit us if we apply it on the Rajiv Gandhi assassination case.

For some reasons, the special TADA court here found all the 26 persons guilty of committing a rarest of rare offence and imposed death sentence on all in 1996. The appeals directly went to the Supreme Court. In 1998, the Supreme Court confirmed death only for four and the remaining convicts simply walked free. In 2000 the death sentence of one of these four, Nalini Sriharan, was commuted to life after a state cabinet recommendation.

From being a part of the 26-strong death convict group, now only three are staring down the barrel.

The Amnesty International, while advocating the total abolition of death sentence throughout the world, cites three reasons to do away with the punishment. Firstly, adopting a religious attitude, it says life is a gift of God/nature, and none except God/nature has any right to take it away.

Secondly, citing economic disparity, it says a litigant's inability to afford a good lawyer has direct nexus to the quantum of punishment. The Amnesty cites the fact that about 90 per cent of convicts in various prisons in the world are underprivileged who could not pay hefty fee to a good lawyer. Thirdly, the fallibility of human judgment is a reason enough not to kill a person even by lawful procedure.

There are, however, judicial officers who feel they have been truly judicious and balanced in choosing cases to award death sentence. "In my 28 year service, nine years of which as sessions judge having power to impose capital punishment, I have not exercised the option even once. Not that I am against death punishment. I have not yet come across that 'rarest of rare case'. We are responsible people. I will not hesitate to award death penalty if acase deserves," a sessions judge told The Times of India.

He says the death penalty should remain in the statute book, to be invoked in deserving cases. "Even if it is not used even once, it will instill a sense of fear in habitual offenders and act as deterrence," he says. Incidentally, the Vellore central prison, where the three condemned prisoners involved in the Rajiv Gandhi assassination case are lodged, has a total of six death row convicts and 290 life convicts. A tell-tale evidence that extreme judicial restraint is being exercised before noose is put around a person's neck.

Source: http://timesofindia.indiatimes.com/city/chennai/Grey-area-between-life-and-death/articleshow/9805450.cms
Times of India
TNN | Aug 31, 2011, 08.10AM IST

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

Wednesday, August 31, 2011

Grey area between life and death

No comments:

Post a Comment

Followers