Abolish Death Penalty India: Focus on Indians in Arab jails too

Friday, February 6, 2015

Focus on Indians in Arab jails too

By Kanchan Gupta |Posted 08-Nov-2014

Tamil Nadu has found a distraction from the rather raucously dramatic (and on occasion tragic) breast-beating over J Jayalalithaa being packed off to jail after being held guilty of corruption. Under the new law that has disqualified Lalu Prasad Yadav from contesting elections and holding public office for his role in the infamous fodder scam, Jayalalithaa too stands stripped of office and power. That, understandably, is cause for much grief among her fans. But I digress. This is not about Jayalalithaa or her current misfortune. It is about why Tamil Nadu is in ferment all over again. Five Indian fishermen in Sri Lanka’s custody have been held guilty of smuggling heroin, and along with three Sri Lankan nationals, presumably their accomplices, given the death sentence. The judgment of Colombo High Court has led to renewed outpouring of anger among Tamil ‘nationalists’ in Tamil Nadu: They are at once outraged and inconsolable.

The facts which are known, and over which there’s no dispute, are simple. The five men had sailed forth from Rameswaram in November 2011, ostensibly to fish in the high sea. Their boat was intercepted by a Sri Lankan Navy patrol and the men were arrested. Subsequently they were charged with smuggling heroin. The families of the five men and Tamil ‘nationalists’ (who have been waging a relentless campaign against President Mahinda Rajapaksa ever since he decimated the global terrorist organisation called Liberation Tigers of Tamil Eelam) insist the men were framed. Sri Lankan authorities insist that the charges are genuine; that the trial was fair; and, that the five Indians, along with three Sri Lankans, were given the death sentence in accordance with that country’s law to combat trafficking in narcotics. The Indian High Commission in Colombo, whose consular officials have been tracking the trial and providing assistance to the Indians, has not categorically stated that the trial was unfair or the charges baseless.

The High Commission has said it will help the convicted Indians contest the verdict in the Supreme Court. Since Tamil ‘nationalist’ sentiments transcend party affiliations in Tamil Nadu and politicians are prompt in pandering to those who rage against Sri Lanka, both the AIADMK and the DMK have demanded that India should immediately intervene and secure the release of the five convicted men; due process of law or sovereign rights of Sri Lanka be damned. It has even been posited that India should take a cue from Italy, which has been playing ducks and drakes with India’s justice system to save its marines who killed Indian fishermen off the Kerala coast. The Government of India has committed itself to trying to secure the repatriation of the convicted men.

A precedent has been found: The death sentence given to two Indians in a previous case was commuted to life sentence and they were repatriated to serve time in an Indian jail. In the event the Supreme Court upholds the High Court verdict, it is hoped the President will commute the death sentence. If the verdict is struck down, then the task becomes that much easier. It would, however, be in the interest of India’s own attempts to combat trafficking in narcotics and trans-national organised crime to address two issues. First, the Government of India should make public its own assessment of the charges against the five convicted men and the trial in Colombo High Court. Have the charges been proved? Was the trial fair? Second, the Ministry of External Affairs, having committed itself to helping the convicted Indians in Sri Lanka, should now make a larger policy announcement: That it will, henceforth, extend all help to Indians arrested for violating the laws of other countries.

As a first step, the Ministry must publish full details of Indians held in prisons in Arab countries, the charges against them, and the nature of help provided by the government in each case. In the event of any Indian being sentenced to death, the government must promise to exhibit similar alacrity in rushing to their defence. Anything less than this would suggest that the Government of India continues to be led by its nose on the ‘Tamil issue’ and is not particularly perturbed by questioning the legitimacy of a sovereign nation’s laws. Those laws may be repugnant to our sensibilities but that does not invalidate them. Sadly, we see no difference between poaching in Sri Lankan waters and smuggling drugs (till 2009 our fishermen were also smuggling arms and ammunition) into that country. Yet, we wouldn’t be so callous and disdainful with, say, Saudi Arabia. What does that tell of us as a nation?

Source: http://www.mid-day.com/articles/focus-on-indians-in-arab-jails-too/15747193 [last accessed 06.02.2015]

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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

Friday, February 6, 2015

Focus on Indians in Arab jails too

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