Abolish Death Penalty India: As Baby Killer Is Convicted Within 23 Days, Questions On Fairness: Report (Madhya Pradesh)

Monday, December 24, 2018

As Baby Killer Is Convicted Within 23 Days, Questions On Fairness: Report (Madhya Pradesh)

All India | Reuters | Updated: May 23, 2018 18:36 IST

INDORE: Naveen Gadke was arrested on April 20 and charged with the rape and murder of a baby girl in Indore.

Three weeks later a court sentenced the 26-year-old odd-job man to death in the fastest such trial known to have happened in the country in recent times where public outrage is running high because of a series of rapes and related killings. Police, prosecutors and the district court in the Indore worked at a furious pace to get the conviction quickly, amid a backlash on the streets, including marches in the city. This is in a country where Prime Minister Narendra Modi's government last month introduced the death penalty for rapes of girls under 12 years in response to public pressure but which has a notoriously slow court system, with cases taking at least six years on average to final ruling, according to governance tracking group Daksh.

But the pace of the trial, the intensifying push for speedy hearings in rape cases, and questions about the legal defence provided to Gadke - who pleaded not guilty - have raised concerns among some legal rights advocates. They are fearful there will be wrongful convictions and hangings when a defendant cannot afford to hire a good lawyer. "While expeditious trials are ideal, these should not be at the cost of fair trial safeguards like the right to adequate time to prepare a defence and the presumption of innocence," said Leah Verghese, senior campaigner at human rights group Amnesty International India, in an email response to questions. Senior Supreme Court lawyer Rebecca John said she was concerned. "As a principle, I am opposed to rushing through investigative processes and trial processes" she said.

But reflecting the mood of the nation, well-known Supreme Court lawyer Dushyant Dave, a vocal supporter of capital punishment, said India "needs to send at least 500 people to death in the next one year to end this endemic" of rape. "Our system is archaic and extremely inefficient," he added. Such views have resonated with the mother of the dead three-month-old girl as she sat on the front yard of a 200-year-old palace where her homeless family sleeps in the open. She told Reuters she was happy with the swift verdict but her daughter would get justice only when Gadke is hung to death, just as quickly. "Once such men are hanged, no one will dare to do anything like this to any girl," she said. Rape victims and their families cannot be identified under Indian law. Gadke could not be contacted as journalists are not allowed to speak with convicts in jail as per a home ministry directive. Sachin Verma, Gadke's lawyer, said his client told him that his estranged wife "framed" him, but said little else. Reuters could not trace Gadke's wife to seek comment.

SLAPPING AND SHOVING

At trial, the mother, police officers and the prosecution lawyer said security cameras showed Gadke taking away the infant as she lay asleep by her parents. Fifteen minutes later, he was seen coming out of the basement of a nearby building, where her blood-smeared body was found, police said. Medical tests, completed quickly under instructions from government officials, confirmed she was raped, and the semen from a vaginal swab was found to be a DNA match with Gadke, according to court documents reviewed by Reuters. Gadke's lawyer Verma, who specialises in matters related to crimes against children, said he reluctantly took the case on state government orders.

That was after four other lawyers refused to defend Gadke, Verma said. In a sign of how high temperatures were rising in the community, around a dozen lawyers attacked the defendant outside the court when he first arrived, slapping and shoving him, according to police. Prosecutors presented 29 witnesses, including police and shopkeepers who found the victim's body, and "everybody supported the prosecution", said Verma. He presented no witnesses for Gadke's defence. Verma said he could have done better if he had more time to prepare for the case. "They had to create a story and they had to decide quickly," said Verma, who is expecting to receive 4,000 rupees ($58) from the state government for representing Gadke. "My client told me: 'Everyone has already decided I am guilty. What's the point of all this?'" Special prosecutor Mohammad Akram Shaikh said that they had "conclusive evidence" against Gadke. Judge Varsha Sharma, who deals with matters related to crimes against children and ruled on the case, declined to comment.

SENDING A MESSAGE

Police pressed charges against Gadke within seven days of the crime, said Police Inspector Shivpal Singh Kushwah. "All of us wanted to send a message that the law can work fast, and we succeeded," he said. The court sat for seven straight working days to hear the case, unusual in India where one court is often dipping in and out of several cases on the same day. A government-run laboratory conducted tests on forensic evidence within four days of a police request. This usually takes more than a month, Kushwah said. After hearing details of his crime from Shaikh and the witnesses, Judge Sharma found Gadke guilty and ordered his death by hanging. "This falls under the rarest of rare case and it would be appropriate to hand such a criminal the toughest punishment," the judge declared. The sentence has to be confirmed by a higher court, for which Gadke will be provided a different lawyer by the state government. The court's decision can be challenged in the Supreme Court. An appeal to the president is the last resort. The entire process can take years.

ACCELERATION DEMANDED

Even before Gadke's trial, there were growing calls to speed up child rape trials. Lower courts take an average of five years to complete cases of prisoners sentenced to death, high courts one year and four months, and the Supreme Court two years and one month, according to a 2016 report by the Centre on the Death Penalty in the National Law University of Delhi. The university study found that 74 percent of 373 death row prisoners they interviewed were economically vulnerable. The majority were from low castes and religious minorities. In the Indore case, Gadke did various jobs like cleaning utensils in eateries. By contrast, trials involving India's rich and powerful sometimes take more than 10 years. Gurmeet Ram Rahim, the self-styled godman who had many followers, was convicted last year on charges of raping two followers - 15 years after the case was registered. Government statistics show that since 2012, when a young woman was gang raped in a moving bus in Delhi igniting national uproar, reported rape cases have climbed 60 percent to around 40,000 in 2016 - about one every 15 minutes - with child rape accounting for about 40 percent.

Source: https://www.ndtv.com/india-news/as-baby-killer-is-convicted-within-23-days-questions-on-fairness-report-1856517 (Accessed 24 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

Abolish Death Penalty India

Monday, December 24, 2018

As Baby Killer Is Convicted Within 23 Days, Questions On Fairness: Report (Madhya Pradesh)

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