Abolish Death Penalty India: Debate over hanging Yakub Memon: Why death penalty can't be done away with

Tuesday, December 18, 2018

Debate over hanging Yakub Memon: Why death penalty can't be done away with

S Murlidharan Jul 23, 2015 17:11:41 IST

Updated Date: Jul 23, 2015 17:11 PM

Every time the hangman’s noose is readied, the case for and against capital punishment springs up for animated debate in the media. The arguments are by now familiar. The abolitionist school says there could be a miscarriage of justice if subsequent events prove the innocence of the individual. They also argue some evidence may show the extenuating circumstances may establish that it wasn’t cold-blooded murder. Cynics wonder how only people from the backward segments of the society and minorities figure in the rarest of rare list. They blame it on the inability of such accused to defend themselves by hiring the services of legal eagles. The votaries of capital punishment see merit in the eye-for-eye equation, the bedrock of a retributive justice system.

While Europe, barring Belarus and Kazakhstan, swears by abolition and has stopped awarding and executing death penalty, the US has been divided on the issue for long, and 18 of the 50 states have abolished the death sentence. The Indian law and jurisprudence on the issue is clear--- the death sentence to be awarded in the rarest of rare cases. The 18 states in the US that have abolished death penalty must ponder if the right to possess a gun conferred by the second amendment to the US Constitution should prevail in their states because a gun in the wrong hands can result in deaths. While the right to possess a gun is often questioned in the United States, it ought to be abolished in states that have foresworn the death penalty. Arming people who can become trigger-happy and then condoning their crimes with a softer punishment is nothing but running with the hare and hunting with the hound.

Likewise, it is for the European nations like the Netherlands, Denmark and Switzerland that countenance euthanasia to ponder if this sits well with their abolitionist stance. If state taking away of life of a convict is reprehensible, then the act of mercy killing and doctor assisted suicide must be deemed equally reprehensible. It may be contended that they are not comparable because while death penalty is meted out compulsorily at the instance of the judiciary, mercy killing is voluntary. But then this is a specious argument. If states cannot end life, it cannot encourage voluntary termination of one’s life, which is sanctified as law in the Netherlands. If a convict must be allowed to live fully i.e. till God has ordained him to live, it is equally the duty of the state to take care of people suffering from pain or mental trauma rather than taking their lives, given the fact that a cure may emerge later.

Coming back to the basic issue, the abolitionist school for the death penalty misses the wood for trees. Doing away of death penalty must be presaged by a guarantee that the society would be free of wanton murders and killings. Can any government worth its salt give such a guarantee? The question is not merely rhetorical. If a government cannot prevent wanton killings, it should not take up cudgels for those indulging in such killings. Many of the Scandinavian countries are pacifists but that does not mean murders and killings don’t take place in the region. While it is debatable if death penalty is sufficiently deterrent, the truth is that the ends of justice would be met only if wanton murder is met with execution of such murderer. It is all fine to say that a lifetime imprisonment is more painful than death, but the reality is boredom is not an affliction that affects every prisoner uniformly.

The sentimental amongst the abolitionists contend that a death penalty penalises the family more the convict. That is maybe, but the poignant truth is all premature deaths are God’s punishment against the family rather than against the deceased. The one who dies prematurely leaves behind a distraught family often unable to fend for itself economically and emotionally.

Source: https://www.firstpost.com/india/debate-over-hanging-yakub-memon-why-death-penalty-cant-be-done-away-with-2358810.html (Accessed on 18 December 2018)

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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

Tuesday, December 18, 2018

Debate over hanging Yakub Memon: Why death penalty can't be done away with

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