Abolish Death Penalty India

Wednesday, May 29, 2019

They had kidnapped a 4-yr-old, and brutally murdered him

Nirupam BanerjeeFeb 19, 2019, 06:15 AM IST

The Gujarat High Court on Monday saved two persons—Akshay Patel and Kuldip Panchal—who had brutally murdered a four-and-a-half-year-old kid for ransom, from the gallows, and converted the death sentence awarded to them by a Visnagar court to 30 years of life imprisonment without remission.

The court, while setting aside the death sentence, remarked that the duo had committed a heinous crime of murdering an innocent, helpless, and a defenceless boy aged four-years-and-five-months, and they are liable to be punished severely. However, it clarified that it is not a case which falls within the category of the rarest of the rare cases. As per the case details, the duo had abducted the child on March 17, 2012, while he was playing outside his house in Visnagar town of Mehsana district and demanded a ransom of Rs 50 lakh from his father. The father, a businessman, told them that he can't arrange the amount at such short notice, and can provide them Rs 12 lakh at the earliest. However, the duo refused to accept the same and threatened to kill the child, if the entire amount is not paid. They had also threatened the man to refrain from involving the police.

Worried about his son's safety, the man informed the police about the abduction and ransom threat. The duo somehow came to know about the same and told the father that now they do not want any money and he will have to pay the price for informing the police. On the next day, they purchased blades, took the child underneath a bridge near Rakhav village, and slit his throat to kill him. Thereafter, they buried the blood-soaked body while the child was still alive. The duo got arrested by the police and the Visnagar sessions court after a thorough trial awarded them a death sentence in March 2016. While the state government moved the high court for confirmation of the death sentence, the duo appealed against the verdict. The high court on Monday rejected the appeals while commuting the death sentence awarded by the lower court to minimum 30 years of imprisonment.

WHAT COURT SAID

HC SAID that it is not the rarest of the rare cases

Why the death sentence was commuted?

The accused were aged 20 years, respectively, while committing the crime and had just attained majority.

Panchal has no criminal antecedent and hails from a poor strata of the society.

No evidence on record to indicate that the duo cannot be reformed.

The child was abducted for money and the duo had no intention to kill him until the situation went out of control.

Criminals are not born, but made

Quoting Justice VR Krishna Iyer, the court said: "Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. Indeed, every saint has a past and every sinner a future".

Death penalty should remain on the statute book

While adjudicating the case, the court opined that death penalty should remain in the statute books and should not be wholly abolished. It held that the presence of death penalty act as a deterrent for criminals. The court also held that if people get away after committing serious crimes by being awarded nominal punishments, it may induce people to resort to personal vengeance, which will affect peace and order in the society.

Source: https://www.dnaindia.com/automobile/report-gujarat-high-court-spares-two-child-killers-the-gallows-2721606 (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

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