Abolish Death Penalty India: Walking dead too long

Friday, February 6, 2015

Walking dead too long

Bangalore Mirror Bureau | Sep 4, 2014, 10.33 PM IST By:Somasekhar Sundaresan Lengthy process of implementing death sentence doesn't function as retribution or deterrence

Renukabai Shinde - Death row convict, Maharashtra The Supreme Court has ruled that it would start a new tradition of hearing in open court, petitions seeking review of judgments confirming the death penalty. Otherwise, all review petitions are considered by the judges in chamber without another hearing. This decision, yet again underlines the sensitivity in our highest judiciary to the infliction of death by man on man. The futility of capital punishment has often found mention in this column. More recently, rulings of the Supreme Court on the unacceptable length of time between the imposition of a death sentence and execution were lauded - the court has consistently ruled that even a convict sentenced to death enjoys the constitutional protection of the right to life until the last breath. The Supreme Court has documented, with examples, how convicts on death row have gone insane or physically infirm, just waiting to know if they would be put to death or pardoned. Of late, undertrials accused of gruesome crimes that are widely reported in the media have been found dead in prison under mysterious circumstances - typically explained away as suicide, they are recipients of lawless justice meted out the honour code among prison inmates. Expectedly, hardliners rail against such considerations. If a criminal can kill with impunity, they would argue, there should be no reason to spare her from any form of indignity. They would accuse defense lawyers of frustrating execution. A typical line one hears is that it is only in India one experiences delays in execution and the system is broken. The United States of America is often extolled for perceived speed in punishment and the allegedly consequential fear of law in the American society. Nothing could be farther from the truth as is underlined in a judgment handed down just six weeks ago by a Californian court. Striking down a death sentence handed down in 1995 to a rape and murder convict, the court has held the death penalty system in California to be violative of the constitutional protection against imposition of cruel and arbitrary punishment. The court found that since 1978 (when California introduced a new law on capital punishment), over 900 individuals were sentenced to death there. Only 13 have been executed, 63 died of natural causes, 22 committed suicide, and the rest still languish in prison. Indeed, some prison inmates have died of "drug overdose" or "violence in the exercise yard". The review and appeal of a death sentence takes more than 25 years in California. The national average in the US, at over 15 years, is not spectacularly better. Only 17 out of the 748 Californian convicts with a death sentence have had their appellate and review processes run its full course. Since 2006, no execution has taken place. Over 20 per cent of the death row convicts have crossed the age of 60 in prison. The random few who do get executed would have languished for so long that their execution would serve neither the purpose of retribution nor deterrence, the court has observed. "Indeed, the law, and common sense itself, have long recognized, the judgment reasons, "that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition." These observations could well have been about India. Despite the paraphernalia of safeguards, the administration of the death sentence is as damaged in the US as it is in India. The blind faith Indian hardliners have in the US justice system is therefore neither backed by facts nor shared by her constitutional courts. In fact, access to justice is so expensive in the US that even the innocent are incentivized to strike "plea bargains" rather than fight to clear their reputation, relieving prosecutors from having to stand the test of scrutiny. The super-rich settle to save super-expensive litigation costs. The impoverished end up in jail. The quality of legal representation they then get is proportionate to their financial strength, rather than strength of their merits. Our Supreme Court's latest decision on a public review of death sentences is therefore understandable - one has to be truly cautious about consigning any human into the living hell that the death sentence represents. source: http://www.bangaloremirror.com/columns/views/Walking-dead-too-long/articleshow/41721165.cms [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

Walking dead too long

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