Abolish Death Penalty India: A matter of life and death

Wednesday, October 12, 2011

A matter of life and death

By Kuldip Nayar
Published: October 10, 2011
The Express Tribune: With the International Herald Tribune

I have no personal differences with people who want to abolish capital punishment. It is their principled stand, as they claim, and it holds good in all cases where death sentences have been awarded. The risk of hanging an innocent person is too great, they say. Not even the state has the right to end a life which is given by God. The rationale of nearly 150 countries is more or less the same and they have taken away from their courts the power to award death sentences, however heinous the crime maybe.

India and the US are also under pressure from human rights organisations to change their archaic laws and ban the death sentence. My own belief is that the death sentence is barbaric and it needs to be abolished. It reminds me of the days when the dictum of tooth for tooth prevailed. Our government is still stuck on the idea that death sentence acts as a deterrent or that it assuages the grief of those who lose their dear ones.

I am bewildered at the attitude of the leaders and activists who ask for clemency on behalf of the culprits, who should have been hanged long ago.

This faulty thinking first made the chief minister of Tamil Nadu, J Jayalalithaa, ask for clemency of three convicts of former prime minister Rajiv Gandhi’s assassination. Now, Punjab Chief Minister Prakash Singh Badal has asked mercy for DP Singh Bhuller who triggered a bomb blast in September 1993, which killed nine people.

And the latest in line is the chief minister of Azad Jammu and Kashmir (AJK), Omar Abdullah, who had raised the question of whether the resolution for clemency of Afzal Guru by his state assembly would go unnoticed, as was the Tamil Nadu assembly’s resolution. Afzal Guru was sentenced to death for having attacked the parliament, which is the symbol of India’s democratic polity. All three chief ministers have politicised criminal acts. They have never demanded the abolition of the death penalty. The cases they espouse and believe, give them electoral advantage. Since politicians weigh everything on the scales of vote, they do not mind preaching something against the constitution.

Or, is it possible that they are afraid to take a stand on the basic issue and prefer to go along wherever the wind blows at a particular time? The raucous created in the Tamil Nadu assembly has been copied by the AJK assembly, beating all records. In both the cases, the ruling parties have been in the forefront in fomenting trouble.

The Supreme Court’s remark holds well in all the three cases. Taking up the mercy petition filed by Bhullar, the court has asked the government to explain the delay. After a lapse of eight years, the president who disposes mercy petitions rejected the plea on May 25 this year. All countries in South Asia have jumped into the arena. Sarabjeet Singh must languish in a Pakistani jail because he is the prize which Islamabad wants to cash in on some day to extract concession from New Delhi. Likewise, India must have a hostage in the shape of one prisoner or another from Pakistan.

There is no other way except to go back to what the law demands. Yet, I believe that there should be no hanging of Afzal Guru, D P Singh Bhuller, Sarabjeet Singh and the Rajiv Gandhi assassins. Their death sentences should be commuted to life imprisonment. And life sentence should mean sentence for life, till the culprit breathes his last in jail.

Published in The Express Tribune, October 11th, 2011.

Source: http://tribune.com.pk/story/271019/a-matter-of-life-and-death/
accessed on 12th October 2011

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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, October 12, 2011

A matter of life and death

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