Abolish Death Penalty India: The death penalty in India

Friday, February 6, 2015

The death penalty in India

Published: October 26, 2014

The writer is the editor and translator of Why I write: Essays by Saadat Hasan Manto, published by Westland, 2014. His book, India, Low Trust Society, will be published by Random House aakar.patel@tribune.com.pk

The fate of two criminals is in the news. One is the convicted Gujarat minister, Mayaben Kodnani, who was sentenced to 28 years for her part in the 2002 massacres. She was given bail on health grounds and is out of jail. This month, the Gujarat government said it would side with her and against the special prosecuting body, which wanted her in jail. The other is Surinder Koli, convicted of one of the most horrific crimes we have heard of in India in recent years. Describing his acts, Harsh Mander wrote in The Hindu that Koli, who was then 33, was “convicted of killing at least 16 children, raping them dead or alive, chopping them into pieces and eating their flesh”.

The Indian Supreme Court has stayed Koli’s execution till October 29, but the fact is that India’s state has been executing people at a high rate under the current president, Pranab Mukherjee. The president is the final arbiter in death penalty cases and his rejection of appeals means that the convict is killed. He rejected Koli’s plea in July and next week’s hearing is probably the last chance Koli’s lawyers have to stop the state from executing their client.

The Times of India reported on February 11, 2013, that Mukherjee had sent more people to the hangman in his first seven months in office than in the previous 15 years. Koli’s lawyers say that his confession was taken through torture and that even if true, it shows a man who is disturbed. Mander wrote: “does even such a man merit any kindness? Is this not one case in which the world is better off without him? But his case — gruesome as it is — only reinforces my resolute opposition to the death penalty … If a crime results from a psychological disorder then, however gruesome and abhorrent the transgression, surely the humane, civilised, socially decent and constitutionally valid recourse would be to treat the problem, not eradicate the victim. What Koli needs desperately is clearly a doctor, not a hangman.”

I agree with Mander and don’t think hanging people solves anything. I would also say that Kodnani, who is in her sixties, being given bail is not a bad thing. I’ve written about this before and in India, the demand for death to convicts ensues from a desire for vengeance, not justice. This is a sign of a primitive society and we must accept that even educated Indians are not exempt from the feeling. It would not be incorrect to say that some of the more savage solutions for curbing crime originate from them. In our parts, public lynching is not uncommon and, like the awful incidents with blacks in the US a century ago, it is acceptable by the public to wound or kill those who offend by stealing or by misbehaviour. This is also a product of that same desire for vengeance, and the emotion is felt strongly and collectively.

The crowd takes offence even when it is not the victim, and feels entitled to join in handing out punishment. Mobs form dangerously quickly on the subcontinent and carry with them a primitive like-mindedness, which makes them lethal. In 2012, Frontline magazine reported that 14 judges sent an appeal to the president seeking his intervention to commute the death sentences of 13 convicts in various jails. The report said that the judges “have appealed to the president because these 13 convicts were erroneously sentenced to death according to the Supreme Court’s own admission”.

The president was also told that two men had, in fact, been wrongly killed. Ravji Rao and Surja Ram, both from Rajasthan, had been executed on May 4, 1996 and April 7, 1997 after flawed judgments. Given this, it is remarkable that Indian politicians and media should be clamouring, as is obvious to any observer, not for clemency, but for execution. After the conviction of those accused in the infamous case of rape and murder of a young woman on a bus in Delhi, CNN reported: “The same crowd outside the courthouse that cheered Friday’s death sentence for the four adults turned their ire on the juvenile. The crowd chanted, ‘Hang the juvenile’.”

It is incumbent on the state and the media to calm passions in a nation where this sort of thing happens. I would like to end by quoting from Shakespeare. We were taught to memorise these lines from Portia in “Merchant of Venice” without thinking in school. They make more sense to me as an adult. “The quality of mercy is not strained/It droppeth as the gentle rain from heaven/Upon the place beneath/It is twice blessed/It blesseth him that gives and him that takes.”

Published in The Express Tribune, October 26th, 2014.

Source: http://tribune.com.pk/story/781072/the-death-penalty-in-india/ [last accessed 06.02.2015]

No comments:

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

The death penalty in India

No comments:

Post a Comment

Followers