Abolish Death Penalty India: Capital Punishment, is that the answer?

Friday, February 6, 2015

Capital Punishment, is that the answer?

Published: August 14, 2014 SUNNY MANGAT VANCOUVER DESI Today August 14, 2014 marks the ten year anniversary of the hanging of convicted rapist and murderer Dhananjoy Chatterjee. On May 5, 1990 a 14 year old girl by the name of Hetal Parekh was raped and murdered in Kolkata, India by the caretaker of her building. The Indian Express, 2012 states it took almost 14 years after the young girl was raped and murdered for the convicted rapist and murder to serve his punishment, death by hanging on August 14, 2004. It is stated that Dhananjoy Chatterjee had repeatedly appealed and filed mercy petitions, all in which were rejected due to the brutality of the crime. Presently, the Jyoti Singh Pandey gang rape case- the 23 year old student who was brutally gang raped and died of internal organ injuries, there were six assailants, four received a sentence of death by hanging, the fifth juvenile who received a three year sentence and the sixth had allegedly committed suicide in prison. All four of the convicts who were given a death sentence have received stays of their executions on the grounds to appeal by the Supreme Court (Times of India, 2014). After the rape of Jyoti Pandey, many of the middle-class students took to the streets to protest the sexual violence against women, many of whom were demanding chemical castration as punishment and or death penalty. On December 23, 2012 a three member committee made up of Justice J.S Verma, who was the former chief Justice of the Supreme Court; Leila Seth, who was the former judge of the Highest Court and Gopal Subramanium who was the former Solicitor General of India, looked to review the laws and punishment of sexual violence against women. The members took into account the public suggestions, reviewed and analysed the historical statistics, cases, laws and data. They came up with many suggestions, focusing on increased punishment in terms of imprisonment; they rejected chemical castration and the death sentence as they felt there was no evidence to show deterrence. Furthermore, currently the death sentence under the Indian Penal Code (IPC) is only considered to be given under the “rarest of the rare” cases. They also suggested marital rape exclusionary under the IPC be removed, increase the age of consent to 18, to include a sexual harassment procedures in the workforce, to criminalise the employment of a trafficked person, for the medical field to discontinue the use of the two-finger test as a form of forensic evidence for sexual assault, and police reforms- introduce rape crisis cells, police stations to have cctv cameras set up in interview rooms and entrances, and the ability to file FIR’s online etc. ( As per The PRS Legislative Research, Justice Verma Committee Report Summary) This report was conducted within 30 days as per the request of the government, thus the committee went to work diligently and was able to produce the report Jan 23, 2013. According to First Post (2013) since that date, the government has openly rejected the inclusion of marital rape, and not a single recommendation has been implemented. With the exception of the age limit which has said to been amidst a change prior to the Verma report, due to public pressure over time. Thus the question remains it’s been ten years since the hanging of Dhananjoy Chatterjee for the rape and death of Hetal Parekh yet this sentence has not deterred sexual violence against women. The politicians focus on appeasing the public need for revenge, especially in high profile cases such as the Parekh and Pandey case. Instead of focusing on revenge and seeking harsher punishments, society needs to address the underlying issues that cause violence against women in the first place. The society needs to question why hasn’t the recommendations of the Verma Report been implemented? Why marital rape was openly rejected? Why are there not specific reforms in place to reduce the marginalization of the scheduled caste? Why does the medical community still use the two-finger test as means of forensic evidence, when it has no scientific basis? Increasing punishments is useless if the system does not enforce the laws openly, transparently and justly for all equally. In memory of Hetal Parekh. Source: http://www.vancouverdesi.com/desibloggers/capital-punishment-is-that-the-answer/780671/ [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

Capital Punishment, is that the answer?

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