Ending judicial murder

There has been a movement for abolition of death penalty, and so far 97 countries have joined the list of ‘abolitionist states.’

There can be no two opinions that the perpetrators of the most heinous crime of rape and brutal assault of the 23-year-old physiotherapist in Delhi on December 16 last year, which later resulted in her death, deserved exemplary punishment and they have rightly been brought to justice in a record time of nine months. But the mass hysteria and the near-celebration of the awarding of death sentence to the four culprits is highly disturbing, and, on calmer examination, unbecoming of a civilised society because it amounts to yielding to baser instinct of revenge rather than seeking justice and reformation.

We have a lot to learn from Mahatma Gandhi to whom the quote, “an eye for an eye makes everyone blind,” is attributed, though it is possibly a postulation that Gandhi’s famous biographer Louis Fischer made to explain Gandhi’s approach to conflict and his philosophy of non-violence. It is unfortunate that with the Nirbhaya case, India’s civilisational march against death penalty – there were only three cases of judicial murder through hanging in the last 17 years – could be taking a reverse turn.

When the judgment in the Delhi rape case was handed down on September 13, the prime minister downwards everyone lauded the verdict, as almost the entire nation, led by the shrieking electronic media, cheered. Since then we have all settled down to our daily routine, hardly paying attention to any number of rape, murder and sexual assault cases being reported from across the country.

Sitting down to write this article on Friday morning and glancing at the newspaper in front of me, I find there are at least four prominent rape cases being reported: Mumbai police submit a 600-page charge sheet against the four accused in the Mumbai photojournalist’s rape case; a 35-year-old woman allegedly gangraped by four persons including a police constable in Andhra Pradesh; a 17-year-old girl raped by her brother-in-law in Odisha; and a cabinet minister in Rajasthan, who had allegedly raped a woman at his official residence last week and later threatened her with murder, forced to resign.

This is just a sample and for every case reported, there are hundreds of cases which go unregistered and unreported. Statistics with the National Crimes Records Bureau (NCRB) show that there were more than 2,20,000 violent crimes against women reported in 2011, though the actual number is likely to be much higher.

Violence against women and generally all types of violence can be brought down with the certainty and swiftness of punishment rather than the quantum and severity of it. The outpouring of public anger after the Nirbhaya case could have played a role in the special court’s verdict to award death penalty to all the four accused youth. But we need to understand that the anger, frustration and clamour for justice has to do more with lethargic police investigations and inordinate judicial delays that allow the culprits to roam free, than demanding that the state turn into a murderer.

Recorded evidence

The argument against death penalty is numerous and incontrovertible. Apart from the fact that there could be miscarriage of justice and wrongful conviction – for which there are any number of recorded evidence not only in India but other countries as well – the interpretation of law tends to be personalised and arbitrary. In 1983, the Supreme Court of India introduced the concept of ‘rarest of rare cases’ for awarding death penalty, but how and where does one draw the line?

The NCRB records show that the Indian courts have sentenced 1,455 prisoners to death between 2001 and 2011, and during the same period, sentences of 4,321 prisoners were commuted to life imprisonment. Currently, there are 477 people condemned to death row and languishing in jail for years, in some cases, for more than 20 years. Studies conducted by the Amnesty International and the People’s Union of Civil Liberties have shown that the process of deciding who should or shouldn’t be on death row is arbitrary and biased. The Supreme Court itself has admitted on several occasions that “there is confusion and contradiction” in the application of death penalty.

  Last year, 14 eminent retired judges, including Supreme Court judges who had been part of the benches which had awarded death sentence, wrote to the President of India pointing out that “the Supreme Court had erroneously given death penalty to 15 people since 1966, of whom two had been hanged.”

The judges called this, “The gravest known miscarriage of justice in the history of crime and punishment in independent India.”

 In the last 30 years, there has been a movement for abolition of capital punishment all over the world and 97 countries have joined the list of ‘abolitionist states.’ Only around 58 countries including China, Japan, India, USA, Iran, Iraq, Saudi Arabia, Cuba and Singapore continue the practice, though there are growing voices against it. The United Nations General Assembly has passed four resolutions since 2007 calling for moratorium on executions, but India and USA, the two biggest democracies, have always voted against it.

Does death penalty really act as a deterrent to serious crimes such as murder, rape, robbery, dacoity and so on? Extensive studies done in the United States – a country which is sharply divided on death sentence – show that over the last decade the districts that have abolished death sentence have actually been recording less murders than those that have retained death penalty. The South, which accounts for 82 per cent of the executions in the United States (1,101 out of 1,244 between 2001 and 2011), regularly has the highest murder rate compared to the rest of the country.

In the US, there are any number of institutions and lobby groups that take up the cases of convicted people, exposing fallacies and misrepresentation of facts used to convict them, including the phenomena of false confessions (people admitting to murders or other crimes they have never committed), grave errors in the presentation of forensic results and so on.

In a landmark work, the National Registry of Exonerations, a joint project taken up by the University of Michigan Law School and the Centre on Wrongful Conviction has compiled a list of around 1,200 known exonerations since 1989 of people who were falsely convicted of serious crimes, including those who were wrongly sentenced to death. The registry has given new hope for many more persons facing dubious convictions.

As a democratic society, can we in India take up such egalitarian initiatives, instead of baying for more blood?