Abolish Death Penalty India: Those on Death Row are Most Vulnerable and Marginalized (India)

Tuesday, December 25, 2018

Those on Death Row are Most Vulnerable and Marginalized (India)

Saurav Datta, 11 Dec 2018

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.

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. The right to fair trial – one of the most basic and statutory of constitutional guarantees, and the right against custodial torture and self-incrimination are routinely violated in death penalty cases, and the exclusion from the public good of fair trial rights takes place across different stages of the legal process in capital cases, and a complex set of institutional factors contribute to such exclusion. These are the findings of the India Exclusion Report 2017-18 which was recently released by the Centre for Equity Studies, a research and advocacy organisation based in Delhi.

Rampant Torture

Over 80 per cent of the convicts admitted to having suffered custodial torture. Out of 22 who were convicted and sentenced to death for terror offences, 16 revealed they had been tortured under custody. Out of the 92 who said they had confessed in police custody (and these confessions were used to convict them despite the statutory prohibition under the Evidence Act), 72, i.e., 78.3 per cent admitted to making confessions due to torture. The torture methods mirrored the torture in the notorious Guantanamo Bay - forcible anal penetration, waterboarding, sleep deprivation, tying one to a table while a venomous snake was left inside the room, electric shocks to private parts, severe beating, and the like.

False Pretexts, Abysmal Legal Representation

Many prisoners alleged malicious prosecution and false implication, Akira Begum (location not disclosed to protect privacy) said, "I left my sleeping son at home because the police called me to sign certain documents. I never got to go home after that.” Vatsal Singh narrated how he was called for questioning on an alleged bank robbery charge, and subsequently charged with murdering six members of a family. Atmaram, a death row convict from Maharashtra, narrated his woeful plight. After he was arrested on a murder charge, his pregnant wife and his children were picked up (without any legally valid reason) and locked up in a police station for four days and weren't allowed to communicate with anyone. The experience turned out to be so traumatic that his wife underwent an abortion immediately after being released.

In other cases, prison officials and personnel demand sexual favours from the wives of those condemned to death, in order to grant them their right to a weekly mulaqat (visit). Of the 191 prisoners who shared information regarding access to a lawyer at the time of interrogation, 185 (97 per cent) said they were not allowed to consult a lawyer. Of these 185, 82.6 per cent who spoke about their experience in custody said they had been subjected to torture. As for the quality of legal representation, 132 (36.6 per cent) were represented by legal aid lawyers at the trial court, while 227 (70.6 per cent) had access to a private lawyer. At the Supreme Court stage, this dropped to 71.4 per cent and 29.9 per cent respectively, thus showing how tough it is to access quality legal representation. In the study, even though there were some positive opinions on lawyers, they were far outnumbered by narratives of the lawyers’ lack of interaction with prisoners and their families, repeated demands for exorbitant sums of money and dereliction of duties by defence lawyers.

Exclusion of Marginalised Groups

Uttar Pradesh has the highest number of people on death row - 79 followed by Bihar (53), Karnataka (45), and Delhi (30). 279 prisoners (76 per cent) sentenced to death hail from backward classes and religious minorities. While the proportion of Scheduled Castes/ Scheduled Tribes amongst all sentenced to death was 24.5 per cent, it was significantly higher in Maharashtra (50 per cent), Karnataka (36.4 per cent), Madhya Pradesh (36 per cent), Bihar (31.4 per cent) and Jharkhand (30.8 per cent) amongst states with 10 or more prisoners on death row. Religious minorities comprised a disproportionate share of prisoners sentenced to death in Gujarat (79 per cent), Kerala (60 per cent) and Karnataka (31.8 per cent). On disaggregating the data on economic vulnerability for each social profile category, it was observed that 85.4 per cent of prisoners who were SC/STs were also economically vulnerable. This was in contrast to 64.4 per cent for those belonging to the general category.

Ending the Collective Silence

The report, as it explicitly clarified, doesn't intend to demand the abolition of capital punishment, but with the aid of data- 373 death row prisoners in 62 prisons of 29 Indian states, tried to address the excruciating agony of the sheer uncertainty which "condemned convicts" are forced to face day in day out. Accompanied with this is the fact that 41 non-homicide offences in all the central legislations carry the death penalty as the maximum punishment, while there are only 13 homicide-related offences that do so. This is in stark contrast to the United States, where its apex court ruled that "awarding" death penalty in non-homicide cases (such as rape) is illegal and unconstitutional. But India's lawmakers, especially after the December 2012 Delhi gangrape case, have demonstrated a predilection of baying for the blood of those who they feel shake "the collective conscience of society".

The researchers recount how difficult it was to gather data and how they had to go take the RTI (Right to Information) Act route, approaching the National Legal Services Authority, and the prison authorities to even get to know the total number of people on death row. Maharashtra straightaway refused interview access to death row convicts with the argument that all were terror-offence convicts and voicing their opinions could jeopardise national security. This gut-wrenching report, which seeks to narrate and portray the plight of death row convicts "in the hope that this will end our collective silence" should nudge the establishment and the judiciary. But hopes remain dim.

Source: https://www.newsclick.in/those-death-row-are-most-vulnerable-and-marginalised (Accessed 25 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