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Lethal
Lottery
Some win,
others loose as the hanging question hangs fire
Jagmohan Singh
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Tracing the contours of death penalty debate in India, Pakistan
and the United States, the author thinks that inspite of legal
and political developments to the contrary and despite a large
number of detenues on the death row, India and Pakistan are
testing waters for abolishment of death penalty and that is a
welcome sign. |
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 Sarabjit Singh,
the alleged-spy from India,
on the death row in
Pakistan
has obtained a reprieve with the Pakistani government indefinitely
delaying his execution.
Mohammad Afzal
Guru’s mercy appeal was forwarded by the ministry of Home affairs to
Abdul APJ Kalam -the former President of
India,
on the last day of his term.
Priyanka Gandhi
Vadra, the daughter of Sonia Gandhi and Rajiv Gandhi surreptitiously
visits Vellore to talk to one of the prime accused, Nalini, involved
in the murder of her father. Subsequently Nalini renews pleas for
early release as her death sentence has already been commuted into
life imprisonment.
Why is the
Indian government sparing no effort in seeking a pardon for Sarabjit
Singh? Why has the former Pakistan Prime Minister Nawaz Sharif
spoken about the release of Sarabjit Singh on humanitarian grounds
though not unconditionally? Can one discount the role of former
Pakistan Human Rights minister, Ansar Burney in taking up the cause
of prisoners’ rights?
Was the
government dumb to delay forwarding an appeal in the case of Afzal
Guru, wherein it was receiving flak from the opposition?
 The coverage of
the movements of Sarabjit Singh’s sister Dalbir Kaur and his
daughters Poonam Kaur and Swapandeep Kaur from
Delhi to
Bhikhiwind to Lahore to Islamabad and back defies all logic. Does
any one remember any other case of death penalty which has hogged so
many headlines and bytes in print and on television on a day to day
basis?
Was the
uncovering of Priyanka’s visit a mere coincidence and ‘investigative
journalism’? I respect the personal wishes of Priyanka Gandhi in
visiting Nalini, but her visit has rekindled the hopes of Nalini for
an early release and sparked a keener discussion on the questions of
empathy, remorse and punishment.
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The latest Amnesty International Report on Death Penalty in
India, released on 2nd May, brings out the vagaries
of the Indian judicial system, the bias against the
underprivileged and the violation of human rights of victims
made to spend years in prison, to be told after a decade or more
about their innocence. |
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 These are
significant developments. Though the overall statistics and trend is
disturbing, to me it seems that the governments of
India and
Pakistan are building a case for abolition of death penalty and that
is a welcome sign. Though India voted against the UN resolution for
a moratorium on executions in December 2007, it seems that the
government of India is building public opinion against capital
punishment. The present build-up against death penalty for Sarabjit
Singh will serve as a catalyst for persuading India and Pakistan to
abolish death penalty for all crimes at all times.
Activism against
capital punishment cannot however afford to be complacent. While
South
Asia has
been agog with Sarabjit’s case and Priyanka’s prison visit, sadly in
the
United States,
the moratorium by the US Supreme Court on executions has come to an
end. The latest Amnesty International report on Death Penalty in
India
covering the period 1950 to 2006, compiled by lawyer-activist
Bikramjit Batra, calls Death penalty in India, “A Lethal Lottery”
and seeks “an immediate moratorium on executions with a view to
abolishing the death penalty.”
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There
are as many as 60 mercy petitions under review with the Indian
President Ms. Pratibha Patil, including that of Prof. Davinder
Pal Singh Bhullar, Afzal Guru and the nine accused in the Rajiv
Gandhi case. According to the Death Penalty Information Center
in the US there are a staggering 3,263 inmates on the death
row. In China, executions outnumber those in the rest of the
world combined. |
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According to the
report there are as many as 60 mercy petitions under review with the
Indian President Ms. Pratibha Patil, including that of Prof.
Davinder Pal Singh Bhullar, Afzal Guru and the nine men accused in
the Rajiv Gandhi case.
Chastising the
Indian political leadership for lack of courage in taking
substantive decisions, the Amnesty report has found "abuse of law
and procedure and arbitrariness and inconsistencies in the
investigation process." Questioning the process of grant of pardon,
the report says that, "in practice, the exercise of clemency has
even more potential for arbitrariness than the judicial process,
especially since there is no requirement to give reasons for
accepting or rejecting mercy petitions.”
Bikramjit Batra,
who spent years researching mounds of data and over 700 Supreme
Court reported judgments, alongwith activists of the People Union
for Civil Liberties (Pudduchery and Tamil Nadu) says that "many
Supreme court judges themselves have pointed out the absence of a
clear sentencing policy or what constitutes the rarest of the rare”
and that “the entire judicial and police system was “riddled with
errors” as even the Supreme Court of India had acquitted the accused
in 175 of the 728 cases reviewed in the report, because the lower
courts' verdict was erroneous.
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Courts’
Whims and Fancies
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In 1994, in
the Rampal Pithwa Rahidas v. State of Maharashtra case, the
Supreme Court observed that 'the manner in which the
investigating agency acted in this case causes concern to us’
and overturned the death sentence awarded to eight accused
persons.
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In 2001, in
the Sudama Pandey and others v. State of Bihar case, where the
trial court had sentenced five people to death for the
attempted rape and murder of a 12-year-old child, the High
Court had commuted the sentences, the Supreme Court acquitted
the accused, while noting that both the trial court and the
High Court had committed a serious error by appreciating
circumstantial evidence, resulting in a miscarriage of
justice.
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In Krishna
Mochi and others v. State of Bihar, a three-judge bench
disagreed over the sentence imposed on one of the appellants,
while agreeing on the conviction and upholding the death
sentence awarded to three other appellants.
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In the case
of Gurmeet Singh v. State of Uttar Pradesh, the Supreme Court
refused to take into account a delay of a number of years,
caused in this case by the negligence of staff of the High
Court of Allahabad and refused to commute the sentence on the
ground of delay, relying on the position that only delays in
mercy petitions would be material for consideration.
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In August
2004, Dhananjoy Chatterjee was executed for the 1990 rape and
murder of a girl in the apartment building where he worked as
a guard. Three days after the execution, a similar case (Rahul
alias Raosaheb v. State of
Maharashtra)
of rape and murder of a child was heard on appeal by the
Supreme Court. He was not deemed a menace, and his sentence
was commuted to life imprisonment.
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Amnesty says
that in the past three decades, great strides have been made towards
a world free from executions. In 1980 only 25 countries had
abolished the death penalty for all crimes. That figure now stands
at 91, with a further 11 countries having abolished the death
penalty for “ordinary” crimes (but retained it for offences such as
treason or under military law,
Cuba being the
newest of the countries to do so). Thirty-three countries are
considered by Amnesty International to be “abolitionist in practice”
in that they retain the death penalty for ordinary crimes such as
murder but have not executed anyone during the past 10 years and are
believed to have a policy or established practice of not carrying
out executions, meaning that a total of 135 of the world’s nations
have turned their back on capital punishment in law or practice.
Disturbingly,
while the worldwide trend is towards abolition, the USA is now
making preparations for wholesale executions as 14 executions have
been scheduled in the coming six months in six states beginning 6
May, after a United States Supreme Court ruling ended a seven-month
moratorium on lethal injections.
Texas leads the
list with five people and Virginia with four.
Louisiana,
Oklahoma and South Dakota have also set execution dates.
According to the
Death Penalty Information Center, an anti-capital punishment
research group the latest death row census in the
United States of
America is a staggering 3,263. The only other country which
continues death penalty with alacrity is China, where executions
outnumber those in the rest of the world combined.
According to the
latest official figures in
India, there
were 273 persons under sentence of death as of 31 December 2005.
Amnesty International believes this figure to be a gross
underestimate. At least 140 people are believed to have been
sentenced to death in 2006 and 2007.
The AI report
has revealed that from 1947 to 1949, several members of the
Constituent Assembly expressed the ideal of abolishing the death
penalty, when the Indian constitution was being framed, but no such
provision was incorporated.
The report by
the apex human rights body also points that the apex court of India,
has “reversed two practices that had been observed for several
decades in capital cases. The first practice was not to impose a
death sentence where the judges hearing the case had not reached
unanimity on the question of sentence or of guilt. The second was
not to impose a death sentence on a person who had previously been
acquitted by a lower court.”
The Amnesty
study found that the hanging of a person by the neck, at the end of
a legal process involving the executive and the judiciary at various
stages, was profoundly arbitrary. Taken as a whole, the cases
indicated abuses of law and procedure throughout the legal process:
from the initial collection of evidence (including interrogation of
the accused) by police, to the consideration of evidence by the
courts, to the process of sentencing and appeals. As regards
sentencing, the results of judicial discretion as well the process
itself, including the executive process of consideration of mercy
petitions was flawed and biased.
Another open
secret laid bare by the report is that most death sentences in
India are
based on circumstantial evidence alone, in the absence of forensic
facilities and testimony of true witnesses.
The backbone for
death penalty in
India today is
the Indian Supreme Court’s judgment in Bachan Singh v. State of
Punjab, which talks of taking a life only in “rarest of the rare
cases”. However, even in this case, Justice Bhagwati delivered a
dissenting judgment (published in 1982), arguing that the death
penalty was unconstitutional. He said,
“Our
convictions are based largely on oral evidence of witnesses. Often,
witnesses perjure themselves as they are motivated by caste,
communal and factional considerations. Sometimes they are even got
up by the police to prove what the police believe to be a true case.
Sometimes there is also mistaken eyewitness identification and this
evidence is almost always difficult to shake in cross-examination.
Then there is also the possibility of a frame up of innocent men by
their enemies. There are also cases where an overzealous prosecutor
may fail to disclose evidence of innocence known to him but not
known to the defense. The possibility of error in judgment cannot
therefore be ruled out on any theoretical considerations. It is
indeed a very live possibility …”
Of the over 700
cases examined in the Amnesty study, over 100 were found to have
resulted in acquittals by the Supreme Court. In a small number of
cases the accused were sentenced to life imprisonment by the trial
court, the sentence was enhanced to death by the High Court, and the
accused were then acquitted by the Supreme Court. Generally the
lower courts err, leaving it for the convicts to bring out the
errors after spending years in prison before their acquittal.
The large number
of accused in capital trials are poor and illiterate, unable to
afford legal representation, particularly at the initial stages and
that further confounds their problems and decreases the scope of
their release.
This is
particularly problematic in cases where political prisoners and
others detained under anti-terrorism legislation, allows for long
periods in police detention and for confessions, extracted under
duress and torture, made to a police officer to be used as evidence.
Inadequacy of safeguards for fair trial is paramount in such cases.
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On the Death Row |
Devinderpal Singh |
Balwant Singh |
Jagtar Singh Hawara |
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How arbitrary
can the Indian judicial system be can gauged from the fact that, “In
the same month, different benches of the Supreme Court have treated
similar cases differently, often apparently reflecting their own
positions for or against the death penalty. While in one case the
defendant's youth could be a mitigating factor sufficient to commute
the death sentence, in another it could be dismissed as a mitigating
factor. In one case the gruesome nature of the crime could be
sufficient for the Court to ignore mitigating factors and in another
case a similar crime was clearly not gruesome enough.”
The social bias
and political partiality against minorities is far too evident when
the executive deals with clemency petitions. Though the Amnesty
Report does not make any allegation in this regard, it does say that
“In practice, the exercise of clemency has even more potential for
arbitrariness than the judicial process, especially since there is
no requirement to give reasons for either accepting or rejecting
mercy petitions, and decisions are neither reported widely nor
published. The absence of transparency in the clemency process is a
serious concern, especially since the executive may be subject to
pressures extraneous to the case.”
Unmindful of
international opprobrium, India continues to violate the
International Covenant on Civil and Political Rights (ICCPR), to
which it is a state party this and has put in place many more laws
for death sentence since accession to this covenant in 1979. It has
also failed to publish data on death penalty and undertake a
comprehensive study on its use.
The Amnesty
Report is dead right when it says, “Judicial state killing has no
place in the modern world and
India should
abolish the death penalty as soon as is practically possible.” Like
in India,
even in the United States, the resumption of lethal executions will
incite public opinion on both sides of the fence. However, as James
Acker, a historian of death penalty at the State University of
Albany says, “When people confront a new wave of executions, they’ll
be questioning not only how people are executed but whether people
should be executed.” Jack Harry Smith, who, at 70, is the oldest of
the inmates on the death row for 30 years, in the United States, and
who claims to be innocent, put the debate where it started from,
when he said “Death is death. If they stick a needle in your arm
or shoot you in the head, it’s cruel and inhuman punishment, taking
a human life.” Yet, he said, “a life sentence is a whole lot worse
— it’s torture.” The debate goes on till civilized society
evolves a humane criminal jurisprudence system.
In a poll
conducted last year, it was found that
America is
losing confidence in death penalty. The Sikh Diaspora, active in
areas of disaster relief, feeding the homeless and countless other
community services, should spare time for participating in campaigns
against capital punishment in the
US
and all over the globe, as a matter of commitment and not a routine
of expediency.
Jagmohan Singh
is a human rights activist based in Ludhiana. He may be contacted at
jsbigideas@gmail.com
7
May,
2008
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