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India: Death penalty must be banished

The sharp spike in death sentences handed out by the lower judiciary in India is deeply distressing. According to a study, ‘Death Penalty in India: Annual Statistics 2016,’ which was carried out by the Delhi-based National Law University’s Centre on the Death Penalty, 136 people were sentenced to death by sessions courts last year compared to 70 the previous year. This is a matter of grave concern for several reasons. For one, the number of death sentences awarded by local courts last year was almost double that handed out the previous year. It was also way above the average number (119) awarded in the preceding 15 years.

Additionally, sessions courts appear to be not following due procedure or Supreme Court orders in awarding the death penalty. The apex court had laid down that the death sentence be awarded only in the “rarest of rare” cases. They were to be the exception, not the norm, it had said. But the number of death penalties awarded in India indicates that it is hardly rare. Importantly, the Supreme Court had in 2015 ordered that death sentences should not be issued in haste, secrecy or before the accused has exhausted all legal options. But in 2015, sessions courts awarded five death sentences although the accused had not exhausted their legal options. Its flagrant disregard for apex court orders is troubling. The death sentence is a serious penalty but our lower courts in particular are dispensing it without giving it adequate thought.

A silver lining in an otherwise disturbing report is the fact that India’s higher courts overturned most of the death penalties and are doing so with increasing vigour. In 2016, high courts commuted the death sentences of 44 people compared to 15 in 2015 while the Supreme Court did so for seven people as against one the previous year.

While the higher judiciary deserves applause for undoing the damage done by sessions courts, this is cold comfort. It is time India did away with the death penalty as it is inhumane and based on a flawed belief that taking away the life of a convict is justice that will bring closure to victims and that it can deter others from committing serious crimes. But there is little hard evidence to support such beliefs.

Besides, it goes against the idea that human beings, even those who commit horrific crimes, are capable of reform. Several countries have done away with death penalty. Sadly, India is not among them. Instead of doing away with the death penalty in toto, Indian courts, especially at lower levels, are embracing it with increasing enthusiasm. This vengeful outlook reflects poorly on our society.

Source: Deccan Herald, March 8, 2017


6 Reasons The Death Penalty Has No Place In India


"Hang the rapist."

These words rightfully captured the strong, visceral reaction from the public to the news of the gang-rape of a 23-year old medical student on the night of December 16, 2012. The reaction came soon after former Home Minister Sushilkumar Shinde publicly favoured the death penalty in "rarest of the rare cases". In that atmosphere, we saw laws being amended to prescribe death in cases where a rape victim died or was left in a vegetative state.

Even today, certain demonstrations marking Dec 16 put effigies in nooses. So when in February 2017, union minister Uma Bharti openly endorsed capital punishment for rapists, it didn't come as a shock to anyone.

During a rally in Agra last month, she said: "The rapists should be hung upside down and beaten till their skin comes off...salt and chilly should be rubbed on their wounds. That is what I had got done when I was [Chief Minister of Madhya Pradesh]."

Many applauded Bharti for doing what a sluggish criminal justice system couldn't. But there were many more who termed her actions as unconscionable, amounting to illegal torture.

Bharti's comments are in no way unprecedented. India has a long and complex history with capital punishment. Since 1995, there have been four very high-profile executions. The 1st was a serial killer known as 'Auto Shankar'. After him, it was Ajmal Kasab (2012), Afzal Guru (2013), and finally Yakub Memon (2015). Excepting Shankar, these were all in connection to acts the State identified as terrorism. Including Shankar, they were all also spurred on by public anger and debate.

Looking at these 4 alone, one might presume executions are the "rarest of the rare" punishment. But according to Suhas Chakma, director of the Asian Centre for Human Rights (ACHR), "awarding death penalty has become routine for courts in India."

An ACHR report by found that 1,455 death sentences had been doled out between 2001 and 2011. And in 2015, there were 320 people on death row.

But even if approval for retributive justice (over reformative justice) is widespread, even if leaders like Uma Bharti proudly endorse it, there are some very solid reasons for not endorsing capital punishment:

1: It Didn't Work For Bharti...


Despite her impassioned proclamations, the punishments Uma Bharti admits to carrying out did not stop rape from happening. In fact, the National Crime Records Bureau revealed that Madhya Pradesh reported the highest number of rapes in during her tenure in 2003-04. It was also the same year that the state reached a record high of 6,848 molestation cases. MP, in fact, had the 2nd highest number of crimes against women that year, with 14,547 cases registered.

2: ...Because It Doesn't Work, Period


In a 2009 study by the Journal of Criminal Law and Criminology, 88% of criminologists surveyed in the USA said they didn't believe that capital punishment deterred crime.

Further, the ACHR report shows that the death penalty is usually commuted to life-imprisonment. The reason? Sending someone to the gallows isn't exactly as easy as 1-2-3. This long-drawn procedure requires stronger evidence than others. As a result, perpetrators are more likely to destroy evidence.


3: Deterring Justice Rather Than Crime


A comprehensive statement by civil society members released in 2012 showed that (because of the above reason) convictions would be extremely difficult to obtain. The conviction rate for rape crimes sank from 49.25 % in 2012 to 29.3 % in 2015, and the death penalty is likely to bring it even lower, instead of checking sexual violence against women.

4: Even Judges Have Spoken Up


A few months prior to the 2012 gang-rape, 14 retired judges wrote to former President Pranab Mukherjee about the shocking "miscarriage of justice" under the death penalty laws. They cited sentences of 9 persons whose crimes were not against the State, and therefore did not match the criteria for execution.

In fact, the Supreme Court had admitted on 3 occasions that these sentences were given 'per incuriam', or in ignorance of certain considerations, provisions and judgements.

Even in cases where the innocent are wrongly convicted, commuting their sentence becomes increasingly difficult in our byzantine criminal justice system. There is an urgent need for reform, and in 2015, for these and other reasons, the Law Commission of India released a 251 page report on why India should "move towards abolition of the death penalty."

5: It Is Circumvented By Privilege


There is a clear bias at work. 2 years ago, researchers at National Law University Delhi compiled a socio-economic profile of prisoners on death row. It found that more than 80% had not completed school, nearly 1/2 had been working since before they were 18, and there were a disproportionate number of Dalits, Adivasis, and religious minorities on death row, strongly suggesting that those in positions of power will continue enjoying impunity in cases of violent sexual crimes.

6: Torture Is Not Justice


Today, India is one of only a handful of countries where the death penalty has not been abolished. Our company includes Iran, China, Saudi Arabia and the USA.

But the global community does not condone the measures espoused by Uma Bharti and her ilk. Way back in 1984, the United Nations passed the International Convention against Torture, to which India is a signatory. And even though we never joined 161 other countries in ratifying the convention, no one is justified in torturing another human being.

Bharti qualified her comments on torture by saying that rapists were not humans but "demons", and undeserving of human rights. Perhaps there's no use exposing the glaring problems behind that logic. Perhaps we should ask - what does it make us when we respond to one human rights violation with another?

Source: Youth Ki Awaaz, Shambhavi Saxena, March 7, 2017. Youth Ki Awaaz is an open platform where anybody can publish. This post does not necessarily represent the platform's views and opinions.

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