Abolish Death Penalty India: custodial death

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Tuesday, December 25, 2018

Death sentences for Indian police torturers welcomed by victim's mother (Kerala)

26 July 2018

Death sentences awarded to two Indian police officers found guilty of killing a man in custody have been welcomed by the victim's mother.

Prabhavathi Amma, the victim's mother, had been fighting the case for 13 years

"God has heard a mother's prayers," said Prabhavathi Amma, who spent 13 years fighting the case in the southern state of Kerala. A special court found the two officers guilty of torturing a man to death after arresting him for theft. These are the first death sentences given for a custodial death in Kerala. One more officer had also been found guilty of the crime, but died before the sentence was pronounced. The court also sentenced two senior officers to three years in prison for attempting to cover up the murder.

Udaykumar, the 26-year-old victim, a daily wage labourer, was detained on 27 September 2005 on suspicion of being a thief, after he was discovered with a sum of 4,000 rupees (£44; $58) at a park in Trivandrum city. The police released him after pocketing the money, but he refused to go as he had promised to buy his mother a gift for the state's annual Onam festival, a harvest celebration. He was "brought dead" to a hospital later the same evening. The doctors who conducted the autopsy found internal injuries as a result of third-degree torture.

"They killed him during an Onam 13 years ago. Now they will spend their Onam in prison. No court will pardon them," said Ms Prabhavathi, after Wednesday's verdict. "He left for work, and I was waiting for his return the whole night. My wait for justice ends today, and I hope other such victims will also get justice soon," she added. The judge rejected a plea from the policemen for their death sentences to be commuted, saying it was a "rarest of the rare" case that deserved death. "Law enforcers are protectors of life and property and not traders of death. They had killed an innocent person in their custody," he said, adding a strong punishment would act as a deterrent against torture and deaths in custody. "It has severely eroded public trust in law enforcement."

Source: https://www.bbc.com/news/world-asia-india-44963770 (Accessed 25 December 2018)

2 policemen given death in infamous custodial death case (Kerala)

P S Gopikrishnan Unnithan

Jeemon Jacob

Thiruvananthapuram, July 25, 2018 19:34 IST

The accused constables K Jithakumar and SV Sreekumar were found guilty of Udayakumar's custodial death at Fort Police Station in Thiruvananthapuram.

HIGHLIGHTS

Udayakumar, 26, was taken into custody in 2005 for questioning in a theft case
He was subjected to third-degree methods of interrogation
The case triggered widespread protests across Kerala

In a rare instance, a Thiruvananthapuram special CBI court has awarded death penalties to two police personnel convicted in a custodial murder in Kerala.

The accused constables K Jithakumar and SV Sreekumar were found guilty of Udayakumar's custodial death at Fort Police Station in Thiruvananthapuram. The prosecution case was that Udayakumar (26), who was taken into custody for questioning in a theft case, died in custody after being tortured by police. Three other officers, including former Fort assistant commissioner TK Haridas, former circle inspector EK Sabu and former sub-inspector Ajith Kumar, were found guilty of conspiracy charges and have been sentenced to three years in prison. They were accused of tampering evidences and fabricating false documents in the case.

A CASE OF 'URUTTI KOLA'

Udayakumar's case had sent a shockwave across Kerala in 2005 after horrific details of police brutality were made public. On September 27, 2005, Udayakumar and his friend Suresh Kumar were picked up by Fort Police in Thiruvananthapuram from near Sreekanteswaram Park. Suresh was picked up in connection with a theft case. Udayakumar was in possession of Rs 4,000 and the police assumed that it was the stolen money. He along with Suresh was then allegedly subjected to third-degree methods of interrogation at the Fort Police Station. Udaykumar was pinned down on a table and the police rolled a large iron rod over his body. Udaykumar, who sustained grievous injuries, succumbed. The incident came to be known as 'Urutti Kola' - an infamous practice where a heavy wooden or iron log is rolled on the body of an accused by the police. The autopsy found 22 injury marks on his body.

Prabhavathi, the mother of Udayakumar, has been fighting for justice since the last 13 years.

Prabhavati, the 68-year-old mother of Udayakumar, fought a 13-year-long battle to prove that her son was killed in police custody. She moved a petition before the Kerala High Court demanding a CBI probe in the matter. The arrest of the accused police personnel was only after the CBI probe. "Now justice has been done and I am alive to see my son's killers being sentenced to death," Prabhavati, a widow, said. The case triggered widespread protests across Kerala as it was alleged that police had used third-degree methods on Udayakumar. It is also the first time that capital punishment has been awarded to serving police officials in a case of custodial death in Kerala.

Source: https://www.indiatoday.in/india/story/policemen-death-infamous-kerala-custodial-death-udayakumar-1295467-2018-07-25 (Accessed 25 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