Abolish Death Penalty India: Indian Rape Debate : Why death penalty is no solution By Ananth Guruswamy, Director of Amnesty International in India

Sunday, March 10, 2013

Indian Rape Debate : Why death penalty is no solution By Ananth Guruswamy, Director of Amnesty International in India

New Delhi (CNN) -- The tragic case of the 23-year old woman who was brutally attacked, raped and left for dead by six men in New Delhi on December 16 has highlighted the unacceptable reality millions of women in India are facing. Violence against women is endemic -- more than 220,000 cases of violent crimes against women were reported in 2011 according to official statistics from the Indian government, with the actual number likely to be much higher. If there has been a silver lining to this horrendous case, it has been the enormous outcry from Indian society. What started as student-led protests in New Delhi has grown to encompass Indians from all walks of life and from the whole political spectrum. Tens of thousands have taken to the streets with the clear message that something has to change, and that women should no longer have to live in fear. But amid the many reasonable and constructive calls on the authorities to address the situation, there is unfortunately a growing chorus of voices calling for the six alleged perpetrators to be executed, or even for mandatory death sentence in cases of sexual violence. Five of the six suspects were formally charged in New Delhi on Thursday, with the authorities investigating whether the sixth suspect is under 18 and a juvenile. The five are expected to be charged with several offences including murder, which is punishable by death under Indian law. The anger felt towards the suspects is completely understandable, as is the desire to impose stricter laws around sexual violence to ensure that what happened in Delhi in December never happens again. But imposing the death penalty would just perpetuate the cycle of violence. Amnesty International opposes the death penalty in all circumstances, regardless of the circumstances or the nature of the crime. It is the ultimate cruel and inhuman punishment, and a violation of a fundamental human right -- the right to life. There is no evidence to suggest that the threat of execution works as a special deterrent. This is reflected in a clear global trend moving towards the abolition of the death penalty. Today, 140 countries in the world have abolished executions in law or practice. Up until November 21, 2012, when the lone surviving gunman from the 2008 November Mumbai attacks, Ajmal Kasab was hanged, India had not carried out a single execution for almost eight years. Kasab's killing meant India took a significant step backwards and joined the minority of countries in the world that are still executing. With hundreds of prisoners still on death row in India, this is a key moment for the country and its use of the death penalty. The Indian authorities must not let the Kasab, execution and the outrage around the Delhi rape trigger a resumption of executions on a larger scale. What India needs now is not revenge, but to address the many underlying issues that are perpetuating endemic violence against women. The laws and the justice system must be reformed, and the definition of rape, which is currently far from adequate, should be amended. The woefully low conviction rate for these crimes must also be addressed, which today only perpetuates a culture of impunity. Imposing the death penalty for sexual assault cases would likely only worsen this situation, as judges would hesitate to give such an extreme sentence, and the legal process would become even lengthier and more complicated. The Indian police force has to be better trained to deal with survivors of sexual violence, and there is a need to develop support systems for survivors. Many women are reluctant to report crimes, fearing humiliation and degrading treatment by the police, or the social stigma that comes from society at large. There are also still serious systematic failures in the Indian justice system that raise questions about its efficiency. To even begin to talk about a method of punishment until these issues have been addressed is to seriously jump the gun. This sentiment has been echoed by many, including U.N. human rights chief Navi Pillay, who has called for legal reform while cautioning against the use of the death penalty. After a year in which both Afghanistan and Pakistan resumed executions after relatively long moratoriums, India now has an opportunity to show real leadership on a key human rights issue in the region. There is no question that the country's women deserve much better legal protection, but the death penalty is not the answer. Courtesy : http://edition.cnn.com/2013/01/03/opinion/india-rape-amnesty/index.html

1 comment:

Abolish Death Penalty IndiaAugust 12, 2013 at 12:05 PM
Dear Chetna Welfare Society,
Yes ofcourse it is violating rights of someone when a man rapes or when someone murders another. They deserve punishment but giving them death penalty would be a State killing an individual. When we are angry at the killing or murder of one person, how can we be happy when the State kills them? Because they deserve 'eye for an eye'? Well eye for an eye will make the whole world blind including you and me.
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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