Abolish Death Penalty India: Another rape death sentence commuted to life (SC

Wednesday, May 29, 2019

Another rape death sentence commuted to life (SC - Madhya Pradesh)

written by Olav Albuquerque March 22, 2019 8:13 am

Although the collective conscience of three subordinate judges were so shocked that they awarded the death sentence to a drug addict who brutally raped and murdered a three-month-old infant on April 20, 2018, a three-judge bench of the Supreme Court commuted it to life in jail. Never mind the ordinance amending the Protection of Children from Sexual Offenders Act (POCSO) which allowed the death sentence for such heinous crimes. That was just a cosmetic gimmick.

And never mind the fact that the Thomson Reuters Foundation ranked India as the most dangerous country for women, edging out Syria and Afghanistan for the top post because the Indian government allegedly did very little after the brutal rape and murder of Jyoti Singh or Nirbhaya in 2012. Now, the purpose of amending POCSO has been defeated by judicial interpretation.

The Supreme Court and 24 high courts have to uphold the legislative intention and policy but in several cases of men raping minor girls, the top court has protected the rights of the rapists rather than show sympathy for the victims who have very little rights under the law. After they are raped and burnt to death, they will remain forgotten forever.

The dastardly rape of the 3-month-infant in April 2018 so outraged Indore residents that they thrashed the brute outside the court after the verdict. The state bar council also asked its lawyers not to defend Navin Gadge, who was sentenced to death. But all this did not weigh with the Supreme Court judges who felt the death sentence was not warranted although the latest POCSO amendment allows death for such rapists. And so, another brute of a rapist has got a reprieve, thanks to the apex court.

The reasoning given by the Madhya Pradesh high court was not enough to rouse the conscience of a three-judge bench comprising CJI Ranjan Gogoi, Justices S Andul Nazeer and Sanjiv Khanna. The Madhya Pradesh high court stated the rape of a infant was a “monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed.

It was not committed by accused under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed and rehabilitated. The act of the appellant / accused meets the test of “rarest of the rare case”.

The convict had abducted the infant in the wee hours of April 20, 2018 while she was fast asleep next to her mother. He had earlier fought with the infant’s grandmother for breaking his liquor bottle after he tried to force the old woman to consume liquor, perhaps with evil intentions.

When she refused to pay him for the broken bottle, he apparently planned his revenge by abducting her, raping her and brutally smashing her head. The crime got wide publicity which forced the trial court to pronounce the sentence within less than two months. But rather than being appreciated, the trial court’s efficiency got flak.

The point here is that India has not abolished the death penalty like some European countries which is why terrorists have been hung to death. But child rapists are as evil as terrorists and it is surprising that the same bench of the Supreme Court commuted the death sentence of another rapist to life in jail on the ground that he could be reformed.

In the second case, in January, 2019, the Jabalpur bench of the Madhya Pradesh high court had confirmed the death sentence of Rabbu alias Sarvesh under various provisions of the POCSO Act. The prosecution case was the convict with a juvenile accomplice, brutally gangraped a 16-year-old girl who was studying for her SSC exam at home alone. He entered her house, raped and strangulated her with her underwear and set her on fire.

In February 2019, the Supreme Court again commuted to life term the death sentence awarded to one Jagdish for killing his wife and five children in cold blood in April 2009. The reason? “Unexplained delay” of four years by the Madhya Pradesh government in forwarding the mercy petition of the convict to the Union home ministry.

The apex court said there was a delay of almost five years in deciding the mercy petition as the state authorities did not send it to the home ministry for four years. A bench headed by Justice N V Ramana said that convict Jagdish had filed a mercy petition on October 13, 2009, but his plea was forwarded to the Union home ministry on October 15, 2013.

“The mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies,” the bench, also comprising Justices Deepak Gupta and Indira Banerjee said.

“Keeping in view that the petitioner has been incarcerated for almost 14 years, we are of the view that regardless of the brutal nature of the crime, this is not a fit case where death sentence should be executed and we, accordingly, commute the death sentence to that of life,” the apex court said.

The dictum that the death penalty is awarded in the rarest of rare cases to heinous criminals without any hope of reform was laid down in Bachchan Singh’s case in 1980 when the Supreme Court dissected the constitutionality of the death sentence after studying voluminous reports of the British and Indian Law Commissions apart from the practice of other countries.

The apex court laid down that the high courts were given wide leeway to pronounce a life term or a death sentence in heinous crimes such as dacoity where murder has been committed, brutal murders without any hope of reforming the criminal. And so our judiciary continues to indulge in academic debates over the need to reform rapists and murderers while the parents of those little girls who were raped and murdered relive an unending torment for the rest of their lives.

Olav Abuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.

Source: https://www.freepressjournal.in/analysis/another-rape-death-sentence-commuted-to-life/1486726 (accessed on 29 May 2019)

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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

Wednesday, May 29, 2019

Another rape death sentence commuted to life (SC - Madhya Pradesh)

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