Abolish Death Penalty India: Persuasive argument against death penalty (Book)

Thursday, May 30, 2019

Persuasive argument against death penalty (Book)

Published : Apr 7, 2019, 3:47 am IST

In India, from the time of Raja Nand Kumar’s case (1775) to the decision of the Supreme Court in the Bachan Singh case (1980).

Demons and Demigods: Death Penalty in India, by Aparna Jha Oxford University Press, Rs 495.

In the interests of fair disclosure, I should, at the outset, state that I believe that the legal system, with its scheme of graded punishments, with different punishments set out for different crimes, is fair and just, and that includes the imposition of capital punishment for certain crimes. And yet, I am now reviewing a book that is opposed to the imposition of capital punishment.

Aparna Jha, a lawyer practising in the Supreme Court, has drawn upon her experience as a lawyer for four young death row convicts, telling their story, and the story of the research carried out by her during the case, to come out with an eminently readable book.

The author, who has written an anthology of short stories as well as a novel, has used her skills as a storyteller to take us through some of the leading cases on the death penalty, describing the actual crimes and associated violence in an almost poetic manner. She makes no attempt to mitigate the severity of the violence that was inflicted upon the deceased, with gruesome details being penned down. And yet, the author believes that the perpetrators of such violence deserve to live, that the death penalty, being nothing but state-sanctioned murder, is wrong, and makes out an impassioned case for not depriving a human being of life. As the last words in the book say if a person is subsequently found innocent, “Can they ever be brought back to life? Then why kill them?”

“The quality of mercy” to quote the Bard, is “…an attribute to God himself”. Mercy, however, cannot absolve the guilty, it merely mitigates the punishment. Over the centuries debate has raged about the desirability or efficacy of the death penalty. Opponents and proponents of the penalty have clear battlelines drawn between them. In India, from the time of Raja Nand Kumar’s case (1775) to the decision of the Supreme Court in Bachan Singh case (1980), the application of the death penalty has travelled from being the fitting punishment for the crime of forgery to a punishment in the exceptionally heinous “rarest of the rare” murders. And now the debate has moved on from the death penalty as a punishment in the rarest of the rare cases, to the abolition of the punishment altogether.

There is no crime in India where the only possible punishment is death. The gravest offences such as murder, mutiny, rape and killing of a child below 12 years of age, abetment of suicide of a minor, abetment of sati, etc., carry the death penalty. However, in all of these cases, the death penalty is one of alternate punishments. The law takes into account that for the same offence, different punishments may be possible. In other words, there is already an inherent protection for the wrong-doer to plead mitigating circumstances to seek a lower penal consequence.

The application of the death penalty has been diluted further still by judicial pronouncements, and now it is only in the rarest of the rare cases, after considering all mitigating circumstances that the penalty is awarded.

Take for example one of the cases discussed in the book — the case of Dhananjoy Chatterjee, a young security guard in an apartment complex in Kolkata, who raped and murdered a teenaged school-going girl who lived in the apartments which he was supposed to guard. There were no eyewitnesses to the murder, but the circumstantial evidence was so strong that the death penalty was upheld by the Supreme Court. In a case where a young girl is savagely murdered by the very man who is supposed to protect her, should issues of the poverty of the parents of the murderer, or the possibility of reform, be factors to reduce the sentence to life imprisonment? The author thinks they should. But the author’s argument is based on a moral premise that to kill is wrong, and the killing of Dhananjoy Chatterjee by the state is as wrong as Dhananjoy Chatterjee’s killing of the girl who had her whole life ahead of her.

The morality of the law is a subject which is once again contentious and the source of a never-ending debate. However, the fact remains that the death penalty is on the statute books, and till such time it remains there, it is the bounden duty of courts to administer it, within the parameters of the law and judicial precedent. For a judge of any court, even the highest, to say that he or she would not sentence a person to death on moral principles, would be reducing the law to mere words on paper, reducing its efficacy and setting a precedent that may have severe repercussions. On the other hand, if the civil society was able to convince parliamentarians that the death penalty should be removed from the statute books, that would be a completely different thing.

If you are looking for a book that contains an intellectual debate on the pros and cons of capital punishment, drawing upon the various theories of punishment and justice, and citing facts and figures, this book is not it. It is, however, a useful starting point for an overview on the subject, since the author does refer to other points of view as well as some of the global perspectives on the death penalty, albeit from her point of view.

The interesting thing is that this book made me pause, introspect and review my thoughts and stand on capital punishment. I would say that any book that can make any other person review his or her own beliefs, deserves to be read, whether you agree with it or not. My views are still unchanged, but reading the book did make me think again.

The reviewer is a lawyer practising in Delhi.

Source: https://www.asianage.com/books/070419/persuasive-argument-against-death-penalty.html (accessed on 30 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

Thursday, May 30, 2019

Persuasive argument against death penalty (Book)

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