|Advocate BM Singh Rathore does not believe his client got a fair chance [Omkar Khakendar/Al Jazeera]|
Wednesday, May 29, 2019
Madhya Pradesh: The Indian state with most death row cases
Critics say the death penalty often targets marginalised groups and warn of an unfair justice system.
by Omkar Khandekar, 12 Mar 2019
Madhya Pradesh, India - Last July, 34-year-old rickshaw driver Rajkumar Pol was accused of sexually abusing a four-year-old girl he used to take to and from school in his home town of Katni, in the central Indian state of Madhya Pradesh. When confronted by his employer, "he didn't look worried at all", said Pol's wife, Sulochana Kol, who believed her husband. She currently lives and works at a dairy farm with her in-laws. "He said he didn't do it … How could he do it when we have a young daughter ourselves?" State police soon arrested Pol. He couldn't afford a lawyer, so was appointed legal aid two days before the trial began on July 23.
The Katni trial court scheduled all-day, back-to-back hearings for three days. BM Singh Rathore, who represented Pol, complained that he was hardly given time to prepare, which limited his ability to cross-examine witnesses. "But the court said, 'you must go on,'," said Rathore. Pol, who maintained his innocence, was found guilty of raping the girl and was sentenced to death.
In the absence of eyewitnesses, the verdict cited injuries around the child's private parts and testimony of her aunt, whom she had confided in. In 2018, 22 criminal cases in Madhya Pradesh, including Pol's, resulted in the death penalty - the highest across India that year. Twenty-one defendants were accused of sexually assaulting minors. Many of these trials were completed quickly - the defendants were convicted in days, at most weeks.Indian Prime Minister Narendra Modi has praised the speed of sentencing as evidence of his efforts to ensure women's safety, "Rapes used to occur earlier as well," Modi said in a speech in January. "But today death penalties are ... within three days, seven days, 11 days and one month."
By the end of 2018, 426 prisoners were on death row. Executions are rarely carried out in India and only three have been recorded since 2008. But critics are worried over the rising use of the death penalty. "If you look at the statistical data, most of those on the death row are extremely poor, with very little or no education and belong to India's most marginalised groups," said Ankita Sarkar, associate litigator at Project 39A, a New Delhi-based research group. "The quality of legal representation that prisoners of death row receive is very often abysmal. These extremely short trials make for a terrible quality of justice especially in a system where fabrication of evidence and suppression of exculpatory evidence is rampant. "India's stand to retain the death penalty when the world is moving to abolish it thus ends up perpetuating a lot of prejudices and biases," she added. "States like Madhya Pradesh, in this context, starts to look like the Texas of India."
Al Jazeera recently interviewed legal experts and prosecution and defence lawyers involved in cases in Ujjain, Katni, Datia and Gwalior, all of which were fast-tracked in the trial courts. According to several of these individuals, the eagerness to dispense justice was a result of media clamour, legal reforms and a systemic push for the maximum punishment - often at the cost of due process.
Awarded points for swift justice
In January 2018, the gang rape of an eight-year-old girl in Kathua, in the state of Jammu and Kashmir, renewed focus on sex crimes in India. In April, the government of Madhya Pradesh passed an order - later codified into lawacross India - to make the sexual abuse of minors punishable by death. In May, the Supreme Court instructed trial courts to wrap up hearings within two months. Around the same time, Rajendra Kumar, Madhya Pradesh public prosecutor, introducedan online performance assessment system for lawyers representing the state in trial courts.
Each month, prosecutors were rewarded for the number of witnesses they examined and the number of convictions they secured. A death penalty verdict would get them 1,000 points, while life imprisonment earned 500 points. The best performers were recognised by the chief minister every month and regular high achievers stood a chance at being promoted. Acquittals meant losing points. Pushpendra Garg, district prosecution officer (DPO) in Datia, said the points system motivated his team. Garg was the lead prosecutor in a case that saw a 24-year-old man accused of sexually assaulting a six-year-old sentenced to life in prison last May, following a three-day trial. "Our conviction rate has increased to 60 percent compared to 40 percent the previous year. We're even appealing against acquittals in higher courts more," he told Al Jazeera.
More appeals mean more points. The push to secure the death penalty came from Kumar, the Directorate of Prosecution director, said Abdul Naseem, DPO in the city of Gwalior. He recalled an exchange he had with Kumar after a 26-year-old from Gwalior was arrested last June for the alleged rape and murder of a six-year-old. "Will the death sentence happen?" Kumar asked Naseem. "It's likely. We're trying," Naseem replied. "It should," Kumar said, according to Naseem. "Try harder."
The trial at Gwalior resulted in a death sentence, in less than three weeks. The High Court upheld the verdict despite the fact police had, said the prosecutor, planted an eyewitness to strengthen their case. According to defence lawyer Ravindra Singh Gurjar, nearly 17 lawyers from the state legal aid pool had refused to represent his client. "I too didn't want to but then I thought, how can I determine the guilt of a person without a trial?" As the trial began, he noticed that the prosecution used the media to stoke public anger. "Every day, the developments in the trial were reported in newspapers with the photograph of the accused and that of a noose. It was a closed-door trial and I wasn't speaking to the media. The information could only be given by the state prosecutors," he told Al Jazeera.
"I've often seen people framed by the police as accused. The motivation can be personal or there can be political pressure".
RAKESH SHARMA, CRIMINAL LAWYER
In Madhya Pradesh, nearly 2,500 rapes against minors were recorded in 2016. India has a poor record of convicting those accused of sexually abusing children - around 28 percent were convicted in 2016. Legal experts say the rising use of the death penalty, especially in cases that are fast-tracked, is worrying. "I've often seen people framed by the police as accused," said Rakesh Sharma, a criminal lawyer from Gwalior with 46 years of experience. "The motivation can be personal or there can be political pressure. In crimes involving a death sentence, it is the responsibility of a court to appoint an experienced, competent lawyer from the legal aid cell. They often don't."
According to the Supreme Court judgement in the case of Bachan Singh vs the State of Punjab in 1980, the death penalty is meant to be applied in the "rarest of rare" cases. But in recent years, the court has observed that it was being imposed "arbitrarily and freakishly", and that "principled sentencing" had become "judge-centric". In a 2008 study, Amnesty International called for a moratorium on the death penalty, citing the risks it poses to marginalised communities. A few years ago, New Delhi-based research group Project 39A examined death penalties handed out between 2000 and 2015 and found that less than five percent were upheld in the Supreme Court and almost 30 percent of death row prisoners were eventually acquitted.
Supreme Court judge Madan B Lokur claimed in 2016 that death row prisoners often failed to get quality representation, saying: "Legal aid in India is nothing but a joke." Kumar, the director-general of prosecution in Madhya Pradesh, however, said the speed of sentencing was a sign of efficiency. "You might say that [conviction in] five days is fast but we had given all possible evidences," he told Al Jazeera. "The high court has already confirmed [death sentences in] seven cases. Three to four cases were commuted to life imprisonment. But it never said the trials conducted were faulty." However, according to the Indian Criminal Procedure Code, the presiding judge is required to look into the circumstances of the accused and their life history, beyond the details of the crime, before imposing a death penalty. In most of the cases in Madhya Pradesh in 2018, death sentences were handed down on the same day as the verdict with little consideration to the accused person's social or criminal background.
Amit Shukla, assistant director general of prosecution in the state, added: "But the public has to have faith in system," he said. "If there's crime, there has to be punishment ... The government has made a law of death penalty. If we are following it, how's that wrong? If the person is innocent, he is relieved in the higher courts. Life goes on." Last October, the Jabalpur High Court in Madhya Pradesh commuted the death sentence of Rajkumar Pol, the rickshaw driver, to 22 years in prison. His crime was "vicious, condemnable and reprehensible … [but] nothing is available on record to suggest that he cannot be useful for the society." Six months on, his wife Sulochana visits him in prison every few weeks. "Even today he says he's innocent," she said. "We're thinking of moving to the Supreme Court. Maybe we'll get justice then."
Source: https://www.aljazeera.com/indepth/features/madhya-pradesh-indian-state-death-row-inmates-190311214738671.html (accessed on 29 May 2019)