Abolish Death Penalty India: Under New Law, Madhya Pradesh Has Sentenced 26 Rapists to Death

Thursday, May 30, 2019

Under New Law, Madhya Pradesh Has Sentenced 26 Rapists to Death

21/MAY/2019

Activists are concerned that the swiftness with which judgments are delivered might mean the accused – who usually come from poor socio-economic backgrounds – are not receiving a fair trial.

In February 2018, Madhya Pradesh passed a law to allow sentencing those convicted of raping minor girls to death. Since then, the special court set up under the Protection of Children from Sexual Offences (POCSO) Act has served 21 death sentences in 2018 and another five in 2019. Additionally, 168 eight rapists were served life imprisonment in 2018. One of these judgments was pronounced in a record of five days. Remarking on the swiftness of the judgment, director general of prosecution Rajendra Kumar says, “This is the swiftest capital punishment given to anybody in the history of jurisprudence. This case has found mention in the India Book of Records.”

Many of the accused come from extremely poor socio-economic backgrounds and could not even muster up a lawyer to defend themselves against the charges. One of the shortest trials was that of Motilal Ahirwar, who was accused of raping a seven-year-old girl on May 29, 2018. He was sentenced to life imprisonment on August 8. The trial of Rajkumar, an autorickshaw driver who was accused of raping a four-year-old girl on July 4 last year, was equally swift. The chargesheet was filed in a Special Court that deals under POCSO on July 20. The verdict was given on July 27. It turns out that since neither he nor his family could afford a lawyer, he was provided a lawyer from the MP States Legal Services Authority. The lawyer assigned to him was B.M. Rathore, who because of the speed with which the trial was conducted, revealed that he did not even have the time to speak to the accused.

DG Kumar brushes away criticism that the accused did not have lawyers. He clarified, “Lawyers have been made available to all the accused. It is not correct to say that they did not have lawyers.” “These are heinous crimes and deserve the strictest punishment,” said Kumar, citing the instance of a four-year-old girl who was abducted and raped by her father’s close friend in Satna district in July 2018. She had to be air lifted in an air ambulance and brought to the AIIMS, where a team of surgeons performed life-saving surgery on her genitalia. She was discharged from AIIMS six months later. “We did not want to delay the case and applied to a Delhi court to go ahead with the prosecution. A magistrate was appointed and the girl gave her statement over video. The rapist, who was a teacher in a primary school, was convicted over video since the girl recognised him as the abuser. He has been served a death sentence without the victim having to step into the court. This is also a first, where a victim was not required to come to court to give evidence. Even the PMO has taken note of this case,’ said Kumar.

Perpetrators usually know the victim

The National Crime Record Bureau’s (NCRB) data shows that in more than 94% instances of rape, the offender is a person that the victim knows – a family member or a neighbour. “Emotional manipulation does come into play in such cases,” he said, citing the example of a maternal grandfather who manipulated his daughter and granddaughter (who was the victim). Both of them turned hostile during the trial. “The verdict did not go against the investigating team because the DNA report matched the semen of the accused,” said DG Kumar insisting, “scientific evidence goes a long way in providing clinching evidence in these cases.” The grandfather appealed before the sessions court, which reduced the capital punishment to life imprisonment. After the death penalty was introduced for the rape of a minor, offenders have killed their victim. The perpetrator may also pressure the victim and family to remain silent. DG Kumar has come across several such instances, the most heinous being a case where the child’s brother and chacha chose to kill a girl after raping her. They did want her to give evidence against them.

Appeals process

In a majority of the cases, the accused have sought an appeal against the capital punishment. In six cases, the Bhopal high court confirmed the death sentence, while in four, it was reduced to life imprisonment. In some cases, life imprisonment has been given up to death, while in other instances, a rapist is made to serve a 14-year sentence. Convicted rapists are also usually confined to a solitary cell. Activists who had fought for stringent punishment in rape cases are unhappy with the speed at which these judgments are being delivered. Dr Ranjana Kumari, who heads the Centre for Social Research, believes these verdicts are ‘a political mockery’, with the courts playing to the political gallery. “At this rate, we will soon hear of thousands of such verdicts from across the country. In the police registry, there are four-and-a-half lakh names of men accused of rape during the past decade. Given these stats, will the state take responsibility for killing so many (rapists) in the future?” she asks. Kumari cites the example of the two Mewati brothers who were accused of raping and killing a six-year old girl in Mandsaur in Madhya Pradesh in June 2018. The local bar association passed a resolution not to defend them. The lawyer provided by the state said that since the public sentiment against them was so strong, they could not produce a single witness. They were served a death sentence on August 21.

The states of Arunachal Pradesh, Rajasthan and Haryana passed similar laws recently, allowing those convicted for raping a child below the age of 12 to be served a death sentence. In July 2018, a special court in Alwar sentenced 19-year-old Pintu to death for raping a seven-month-old child in Rajasthan’s Laxmangarh area. In this state, the special judge conducted daily hearings and again, the verdict was delivered in record time. But the death sentence is considered the rarest of rare punishments. Between 2004-18, only four death sentences were served. From these, three were terrorists while the fourth man who hanged was Dhananjoy Chatterjee who had reportedly raped and murdered a 14-year old girl. In September last year, the Supreme Court stayed the death sentence Rajkumar, who was accused of raping a four-year-old. Lawyers expect the highest court to stay other cases too. Senior advocate Rebecca John has also expressed concern at the string of judgments issued by the lower courts in Madhya Pradesh. “Women safety should be a priority for any government, but this is hardly the way to show they mean business. These verdicts are nothing but an abdication of the principles of natural justice. Every individual has the right to a fair trial. Unfortunately, a lynch mob mentality seems to have taken over which has created an atmosphere of extreme prejudice,” she said.

Swetashree Majumdar, a young lawyer who worked on preparing the Justice Verma Committee report that made recommendations on rape, police reforms, providing quicker trials and stricter punishment for those who commit crimes against young girls, believes the government has not collated any evidence on whether the death penalty acts as a deterrent in cases of rape. “We have no statistics to show that the death sentence helps reduce rape. Even if we take the examples of our neighbours – Pakistan, Bangladesh and Afghanistan – who hand out the death penalty for rape, we find that it has not acted as a deterrent. The system desists from handing out these convictions,” said Majumdar.

When DIG Kumar was asked if the swift and severe punishments have acted as a deterrent, he mulls over the question for a while. He then says, “To a small extent, yes.”

Source: https://thewire.in/law/madhya-pradesh-death-sentence-pocso-law-convicted-rapists (accessed on 30 May 2019)

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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

Thursday, May 30, 2019

Under New Law, Madhya Pradesh Has Sentenced 26 Rapists to Death

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