Abolish Death Penalty India: October 2013

Monday, October 14, 2013

There is class bias in awarding death penalty

Harsh Mander, Hindustan Times October 13, 2013 Last Updated: 23:22 IST(13/10/2013) Last winter, two men were hanged to death in India’s jails, indicted for crimes of terror. On August 8, another man, Maganlal Barela— a little-known tribal cultivator, charged with killing his five little daughters — was scheduled to hang in the Jabalpur Central Jail. Human rights lawyers chanced to read of his hanging in an online news item the evening before his execution was fixed, and rushed to meet Supreme Court Chief Justice P Sathasivam. The chief justice agreed to hear them that evening and concurred that even after the president rejects the mercy petition of a death row convict, there is one more legal remedy: to challenge this rejection in the Supreme Court. Barela was too poor to afford a lawyer in the higher courts but for the team of committed human rights lawyers — Yug Chaudhary, Siddhartha and Colin Gonsalves — and the stay granted by Justice Sathasivam, he would have been sent to the gallows. There are many reasons I oppose his death penalty. The gravity of his crime is not one of them, nor the merits of the judgment holding him guilty. My consideration is the class bias of capital punishment. It can hardly be a coincidence that the majority of the 414 people who faced the gallows in India as of the end of 2012 are impoverished, dependent at best on legal aid lawyers. I recently visited Barela’s family living on the outskirts of a tribal Barela hamlet outside Kaneria village in Sehore district of Madhya Pradesh. Their crumbling home, the sickly pallor of their children’s skin and hair, and their gaunt frames and tired faces testify to lives of unrelenting struggle and want. Barela’s brothers and two wives said that the only months in which food is secure are those that follow the occasional good monsoon, when they live on what they grow on their acre of dry-land. At other times, they await uncertain daily-wage employment from the forest department, or gather firewood in the forests and sell them. After the crime, Barela’s brothers pooled Rs. 5,000 and hired a local lawyer. Once he was convicted in the trial court, they had no further idea about the progress of the case, until they abruptly received notice of his hanging. Barela was represented by legal aid lawyers who never met them. The Supreme Court refused to even admit his petition — let alone hear it on merits — with a single line order. I am convinced that his fate could have been different if he was represented by a high-profile lawyer. Just the few hours we spent in the village threw up many possible arguments which could have been made, if not for his innocence, at least to mitigate his inclusion in the ‘rarest of the rare’ cases meriting the highest penalty of death. There was, first, his manifest abject poverty. Also, not just his wives and brothers, but other villagers testified to his affable nature, the absence of any history of violence and crime, and that he loved his daughters dearly. Villagers said that his behaviour changed dramatically four months before the grisly offence. He suddenly became withdrawn and quiet, and would wander alone for hours in the forests. Villagers explained this as black magic. A more convincing explanation could be of mental illness, perhaps a temporary breakdown because he could not make ends meet. He is receiving psychiatric medication in the Jabalpur prison. The threshold of insanity required if courts are to declare a person innocent is very high. But if evidence from villagers and neighbours suggesting mental illness could have been brought before the courts, could this not have persuaded the courts to at least not hang him? Additionally, the case against Barela is based on circumstantial evidence, as there are no eye-witnesses to the crime. In a similar case in which a man killed his children, the apex court recently awarded reprieve from capital punishment partly on grounds of the mitigating circumstances of “poverty, socio-economic, psychic compulsions and undeserved adversities in life”. In the infamous tandoor case, a Bench headed by the chief justice observed that this was not a ‘crime against society’, and the appellant had no criminal antecedents. All these same arguments could equally apply to Barela’s case. If only Barela’s family could have afforded effective legal representation in the trial and higher courts, it is possible that the trial court’s sentence could have been less severe, and the higher courts could have come to similar conclusions about mitigating circumstances. Are we then actually hanging Barela only because of his crime of being poor? There are also larger philosophical questions about why a society chooses to execute those who violate human and social morality. Is our motivation to prevent further crimes? Do we credibly believe that the next time a father is driven to consider murdering his own children — in a moment of intense rage, despair or madness — he will be deterred only because of the possibility that he may be hanged to death? Barela’s brother says he tried to hang himself after the killing of his daughters, and was saved only because his brother cut the rope in time. Or is our objective in seeking capital punishment actually of retribution, to take the life of a person who outrages and violates what we cherish: in this case a murderous father? It is evident that persons most directly violated by the crime — the mothers of the five girls who were killed— have forgiven him for what the courts have found him guilty. They recalled to us how he was an affectionate father and a kind husband, how he loved his children, and that he never raised a hand on any of them before that horrific day. Their fields lie fallow; their older son has had to drop out of school and instead grazes cattle. “We only wish he could return home and take care of his family”, his wives say. If they can forgive him, can we not? Harsh Mander is Director, Centre for Equity Studies The views expressed by the author are personal Source: http://www.hindustantimes.com/editorial-views-on/ColumnsOthers/There-is-class-bias-in-awarding-death-penalty/Article1-1134733.aspx#.UluZ33Sg5yA.email [accessed 14th October 2013]

Wednesday, October 2, 2013

Man gets death penalty for rape-murder of 8-year-old

Nitesh Kumar Sharma, TNN | Oct 2, 2013, 05.05 AM IST

JAIPUR: The district court in Rajsamand on Tuesday awarded death penalty to a man for raping and murdering an eight-year-old girl nine months ago.

Sessions judge Chandra Shekhar said the 24-year old convict, Manoj Pratap Singh, had committed the ghastly act of "brutally killing a helpless and mentally challenged" child after raping her.

"Manoj is a bolt on the society and the humanity at large. He deserved to be punished with the capital punishment," the judge said in a packed courtroom.

The prosecution presented 25 witnesses and 51 supporting documents including a DNA report during the trial which began after police filed chargesheet on February 4 this year.

After the capital punishment was announced, people busted fire crackers in Kankroli town where the incident took place and nearby Rajsamand town.

Manoj Pratap Singh was a vehicle-lifter and a petty criminal before he abducted the girl from the vegetable cart of her parents on January 17 this year. The girl was mentally challenged.

"Manoj, who belongs to UP, used to live in a rented accommodation near the girl's house in Kankroli. The girl's father is a vegetable vendor. Manoj used to buy vegetables from him," said public prosecutor Pradeep Kumar.

On January 17, the girl was with her parents and grandfather at the vegetable cart when Manoj walked to her and offered her chocolate. He tried to take away the girl, but the parents protested.

"He returned on a bike after 10 minutes and abducted the girl around 6.30 pm. The parents and some others tried to chase Manoj, but he disappeared," the lawyer said.

Manoj bought some beer bottles from a liquor shop on the way and took her to an isolated place in Dhondara area and raped her. He then repeatedly hit her head with a stone lying on the road and dumped her body into a pit in Kamal Talai area.

Meanwhile, the parents who knew Manoj informed the police. Several teams launched a search. He was found around 1 am on January 18.

"He had come to the bus stand to get a mobile recharge coupon and leave the town later. After interrogation, he led the police to place where he had dumped the girl's body," said the lawyer.

As no lawyer agreed to represent him, the court had to appoint a lawyer. "There were several evidences against Manoj. The semen swabs lifted from the girl's clothes and private parts matched with Manoj's DNA. Besides, his clothes having stains of girl's blood were also recovered. There were several eye-witnesses who saw him abducting the girl," said the lawyer.

While Manoj broke into tears after coming out of the courtroom on Tuesday, a crowd of nearly 150 people, mostly locals, clapped and congratulated each-other.

Source: http://timesofindia.indiatimes.com/city/jaipur/Man-gets-death-penalty-for-rape-murder-of-8-year-old/articleshow/23380404.cms?intenttarget=no [accessed on 02.10.2013]

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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