Abolish Death Penalty India: Rights watchdog slams large number of death sentences, says they have failed to curb crime

Friday, February 6, 2015

Rights watchdog slams large number of death sentences, says they have failed to curb crime

Satya Prakash, Hindustan Times, New Delhi | Updated: Sep 01, 2014 08:36 IST President Pranab Mukherjee has rejected 97% of the mercy petitions since assuming the top office in 2012, a human rights watch group has said, stressing that death penalty has failed to act as a deterrent in the country. Mukherjee, who assumed office on July 25, 2012, considered 23 mercy pleas involving 31 death-row convicts out of which only one was granted mercy as on August 31, 2014, the Asian Centre for Human Rights (ACHR) said in its report titled 'India: Death penalty has no deterrence'. The Delhi-based ACHR is a non-governmental organisation engaged in protection of human rights and fundamental freedoms in the Asian region. Mukherjee's decisions are in sharp contrast to those of his predecessor Pratibha Patil, who granted a record 30 pardons, over 90 per cent of India's total death sentences pardoned ever. She rejected only two mercy pleas during her tenure. Mostly awarded in murder cases, death penalty is now also given to repeat offenders in rape cases. ACHR Director Suhas Chakma, however, said that high number of death penalty has not brought down crime rate. "The empirical evidence of the government of India, however, establishes that death penalty does not act as deterrent," said Chakma, who is also coordinator of the national campaign for abolition of death penalty in India. The ACHR said the government should "amend all the laws that provide death penalty" and replace the same with life imprisonment. Citing National Crimes Records Bureau (NCRB) data, the ACHR report stated that from 2001 to 2012, death sentence of 1,552 convicts were confirmed while the death sentences for 4,382 convicts were commuted to life imprisonment. "Death penalty can never be a substitute to prevention, effective and prompt investigation and speedy justice delivery system against crimes on which the government of India has failed," Chakma said. On the contrary, the report said, there was a drastic fall in murder cases following a considerable reduction in executions since 1982 when the Supreme Court propounded the "rarest of the rare doctrine" for awarding death penalty. Even inclusion of death penalty for repeat offenders of rape has not reduced non-homicidal offences such as rape, the report added. On April 4, 2014, a sessions court in Mumbai became the first in the country to impose death penalty on three repeat offenders of rape under the new Section 376E of the IPC in the infamous Shakti Mill rape case. However, statistics provided by Mumbai police showed that 135 rape cases were reported from April to 15 June 2014 i.e., about 2 rape cases daily, the report said. Similarly, the award of death penalty to four adult accused found guilty of rape and murder in the Delhi gang-rape and murder too failed to act as a deterrent. According to Delhi police data, 616 rape cases were registered in Delhi from January 1, 2014 to April 30, 2014, an average of six cases per day. Source: http://www.hindustantimes.com/india-news/rights-watchdog-slams-large-number-of-death-sentences-says-they-have-failed-to-curb-crime/article1-1258858.aspx [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

Rights watchdog slams large number of death sentences, says they have failed to curb crime

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