Abolish Death Penalty India: Women's imminent executions likely to revive death penalty debate in India

Friday, February 6, 2015

Women's imminent executions likely to revive death penalty debate in India

By Andie Noonan and Joanna McCarthy

Updated about 4 hours ago

The imminent execution of the first women to receive the death penalty in India since independence is likely to revive long-standing debate in the country about its use of capital punishment. The two sisters, Renuka Shinde and Seema Gavit, kidnapped 13 children under the age of five in the early 1990s and brutally murdered at least seven of them in the state of Maharashtra. Human rights lawyer Asim Sarode, who worked on the sisters' mercy plea, does not expect the executions to take place until at least next month.

Although personally opposed to the death penalty, Mr Sarode said given the nature of the sisters' crimes, he did not believe the Indian public would be in a hurry to see the laws change in this case.

"India as a society is not very much concerned about the way of punishment," he told the ABC. "They are of very general thought that punishment should be hardened and it will create [an] impact and fear on people not to commit offences. This is a very traditional way of thinking." Some, however, have spoken out against the sentence. The MP for the sisters' home state of Kolhapur, Dhananjay Mahadik, told The Independent that while the women's crimes were "very serious", he believed women should not face the death penalty. The sisters' case has also been championed by human rights groups which have long campaigned for capital punishment to be abandoned.

"We oppose the death penalty altogether because it's irreversible, inhumane," Meenakshi Ganguly from Human Rights Watch told the ABC. "Every time there is a serious incident like the gang rape in Delhi in 2012, almost always the demand in the protest is for a hanging. "That to me is the concern, it is the maximum punishment that anyone can receive so therefore people ask for it when they're outraged by the crime." But the punishment also has many supporters in India's legal and political system. "Nobody values anything more than his or her life, and any system that takes away your life will terrify you," Pinky Anand, a Supreme Court lawyer and politician, told the New York Times last year. "It is human psychology in addition to criminal jurisprudence."

'Rarest of the rare cases'

While the Supreme Court has long stipulated that death sentences should be reserved for "the rarest of the rare cases", there have been a number of high-profile executions in recent years. In 2013, the country executed Muhammad Afzal, who was convicted of plotting the 2001 attack on India's parliament, and in 2012 it hanged Ajmal Kasab, the lone surviving gunman of the 2008 Mumbai terror attacks which killed 166 people.

In 2013, the scope of the death penalty increased with greater penalties for rapists, introducing the death penalty when a woman dies from her injuries. This followed the gang rape and murder of a 23-year-old woman which sparked violent protests in several cities. Amnesty International has said executions in India are usually carried out without notice and in secret. In a 2013 report, it said the president of India hadrejected the mercy petitions of 18 prisoners that year, the most rejections by any leader for almost 25 years. The group also said information on decisions on mercy petitions was removed from the president's secretariat website. Mr Sarode said the country's Supreme Court asked the government for more certainty, including giving prisoners seven days' notice before they are executed.

Use of capital punishment called into question

The efficacy of capital punishment was already on the public agenda when the women's pleas for clemency were rejected by India's president Pranab Mukherjee last year.

In May, India's Law Commission, which advises the ministry of law and justice, issued a discussion paper asking for public opinion on whether the death penalty should be applied and in what circumstances.

When there's public anger the state tends to think this is a way of showing that they're doing something by executing people. - Meenakshi Ganguly, Human Rights Watch.

It followed a Supreme Court case which found that "inordinate and inexplicable" delays in carrying out executions were grounds for commuting death sentences, and suggested the Commission could investigate "whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal".

In January, Indian man Surendra Koli had his death sentenced commuted to life in prison on the basis officials took too long to carry out his execution.

He was convicted in 2009 over the gruesome killing of five children in a workers' colony in a middle-class neighbourhood in north Delhi. However, Ms Ganguly says there remains a serious issue as long as the death penalty remains in place. "In fact in the region we've seen that Pakistan, which had a moratorium [on the death penalty], has gone back to hanging a lot of people after the Peshawar attacks," she said. "When there's public anger the state tends to think this is a way of showing that they're doing something by executing people."

Source: http://www.abc.net.au/news/2015-02-06/womens-execution-revives-death-penalty-debate-in-india/6059596 [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

Women's imminent executions likely to revive death penalty debate in India

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