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INDIA TODAY - The most widely read newsweekly in South Asia.
     CURRENT ISSUE OCTOBER 23, 2006
 
   NATION: DEATH SENTENCE
 

Date With Death

Capital punishments zoom up as police and the judiciary grapple with the rise in heinous crimes. The trend provokes a debate on moral hazards and the need for systemic reforms.

 
Forgive me. I'm just following the government's order. Please take the Lord's name for the last time." Hands folded, the executioner stood in front of the man he was about to hang. Outside, a crowd of thousands thronged rooftops and windows to try and grab a view. Inside, though, one could hear a pin drop. The convict walked up to the gallows quietly, but cried out all of a sudden: "I am innocent. May the Lord bless you." The jailer quickly dropped his white handkerchief-a cue to pull the lever. The man's body jerked for a while and then became still. Dhananjoy Chatterjee, convicted for rape and murder of a 14-year-old girl, had waited 13 long years for death to come and in 40 short seconds got over with it.

That was August 14, 2004, when the first and most-reported execution in a decade had the nation tied up in knots. The media went to town with pop-psych coverage and thinktanks made verbal mincemeat of it. Then, bit by bit, collective memory faded out. Suddenly, death penalties are back in news again. Mohammed Afzal, convicted in the 2001 Parliament attack case, is facing death by hanging on October 20. The Supreme Court has upheld death sentence for the two Pune sisters-Renuka Shinde and Seema Gavit-for kidnapping and killing children. The Central Bureau of Investigation (CBI) is seeking a death rap for those convicted in the 1993 Mumbai bomb blasts. Santosh Singh-accused of raping and murdering Delhi University law student Priya-darshini Mattoo in 1996-is also under the death scanner.

56 people have been handed the death penalty in nine months of whom only three are terrorists

333 convicts are awaiting execution, states the recently released Prison Statistics of India

Alarm bells are ringing. For, death verdicts are zooming up at an unprecedented rate. Prison statistics reveal that the rate had been falling in recent years. So much so that in 1997, Ashok Desai, the then attorney-general of India, submitted before the UN Human Rights Commission: "There's a marked trend towards liberalisation; the number of executions is now far lower than in the past." From 1997 to 2004, not a single execution took place. There's a sudden surfeit now. In the last nine months, various courts have given death penalty to 56 people in 32 cases. Ten of these cases are for brutalisation, rape and murder of minors; 13 for murder; four for rape and murder; one for custodial torture and death; and three for terrorism. Twenty of these verdicts have come from the fast-track and sessions courts, the rest from high courts and two from the Supreme Court. Except for terrorism, none of the crimes concerned are new. So what explains this sudden turn toward exemplary punishments?

  HOPING FOR MERCY
MD. AFZAL
MOHAMMED AFZAL convicted in the 2001 Parliament attack case, was sentenced to death by the Supreme Court of India in 2004. His execution was supposed to take place on October 20, 2006. However, as his wife has filed a mercy petition before the President, the execution will be delayed till a decision on her plea is taken. There is a lot of pressure to issue clemency to Afzal. Hanging Afzal is likely to have negative effects on the peace process in Kashmir. There are others who think that Afzal has not been given a fair trial.

PUNE SISTERS
RENUKA SHINDE AND SEEMA GAVIT have been awarded capital punishment for kidnapping and brutally murdering five children. The two sisters used children to commit petty crimes and killed them when they grew older or outlived their utility. The Supreme Court has upheld the verdicts of two lower courts and rejected their plea for a review of the case. Now, their last hope remains with the clemency petition submitted to the President five years ago. No decision has been taken by the President's office on the mercy plea.

  WAITING FOR VERDICT
SANTOSH SINGH
SANTOSH SINGH, now a practising lawyer in the Delhi High Court, is accused of raping and brutally murdering Priyadarshini Mattoo, a 23-year-old law student at Delhi University. Singh was initially acquitted by a Delhi trial court due to lack of evidence. CBI has now sought death penalty for him in the re-trial of the case in the Delhi High Court. Mattoo was found strangled to death in her South Delhi apartment with 19 injuries on her body. Singh had been stalking and harassing her many years. She even had a restraining order against him.

MEMON BROTHERS
YAKUB, YUSUF, ESSA AND RUBEENA were found guilty in the 1993 Mumbai blast case by the special TADA court. They were charged with criminal conspiracy in organising and carrying out the attacks, which killed 257 persons and injured over 700 others. CBI has demanded death sentences for the brothers and life imprisonment for Yakub's wife Rubeena.

To Soli Sorabjee, one of India's best legal minds, the answer is short and simple. "The horrific nature of crimes committed, especially terrorist crimes," says the former attorney-general to explain the trend. To legal scholar, N.R. Madhava Menon, too, death penalties are rising because offenses of extreme brutality and gravity are rising. "People have no fear of law and social controls are breaking down," says the man who set up the National Law School of India. He is not surprised that the extreme nature of some crimes-especially child rape and serial murders-swing public opinion in favour of death penalty.

  PICTURE SPEAK
"The horrific nature of crimes committed, especially terrorist crimes, explains the sudden turn toward death sentences in recent times."
SOLI SORABJEE
FORMER ATTORNEY-GENERAL
But are crimes in India really spiralling out of control? With 333 convicts awaiting execution according to the recently released Prison Statistics of India, 2003, one expects chilling figures from the nation's dark underbelly. But a rain check doesn't show up an exceptional crime spin. According to Crime in India Manual for 2005 brought out by the National Crime Records Bureau in August 2006, percentage share of violent crimes has decreased continuously, from 13.1 per cent in 2001 to 11.1 per cent in 2005. Murder has declined in 2005 by 2.61 per cent from 2004, crime against women has gone down from 14.2 per cent to 14.1 per cent, while kidnapping and abduction of children has gone up by only 2.1 per cent. The total number of violent crimes reported between 2001 and 2005 has grown by just 2 per cent. And arrest rates have been higher than crime rates in 2005-murder (5.9:3 per cent), rape (2.1:1.7 per cent), kidnapping (2.9:2.1 per cent). A large number of death verdicts though date back to the nineties. "It would require more than a review of five years of crime statistics to establish cause and effect," says Madhava Menon. "An empirical study is imperative."

  PICTURE SPEAK
"A general aversion to death penalties, which should be there in all right-thinking people, is not there in many of the judges."
P. N. BHAGWATI
FORMER CHIEF JUSTICE OF INDIA
P.N. Bhagwati, former chief justice and one of India's best-known human-rights jurists, chooses to focus on the "mind of the judiciary". "The feeling among the judiciary seems to be that crime rates are rising and if they want to bring it under control, a severe sentence is necessary." The man who had famously challenged the 'constitutionality' of death penalties (Article 19 in Bachan Singh vs State of Punjab, 1980), the rise indicates that the judiciary is "losing its sensitivity". "An aversion to death penalties, which should be there in all right-thinking people, is not there in many of the judges," he says. "There seems to be an overwhelming feeling that death is the only way in which you can curb crime."

Majid Memon, the criminal lawyer who represents 29 of the 123 accused in the 1993 Mumbai bomb blast case, thinks that "the yardsticks for applying extreme punishment are not being used very carefully". Hence the rising curve. India retains death penalty through Article 21 of the Constitution and Section 53 of the Indian Penal Code. But such powers are also restricted by the 1983 Supreme Court ruling-capital punishment is a drastic measure that should be imposed only in the 'rarest of rare' cases. But with so many death sentences, he wonders, if the acid tests are being applied properly. "Many of us are opposed to the death penalty because it is irretrievable. And in our country truth takes time to manifest."

  PICTURE SPEAK
"Many of us are opposed to death penalty because it is irretrievable. And in our country truth takes time to manifest."
MAJID MENON
CRIMINAL LAWYER
But the judiciary hardly works in a vacuum. They reflect and respond to shifts in public opinion. A case in point is the way public pressure in favour of executing Chatterjee was created by the media. It held rough-and-ready opinion polls, briefing people with gory details of the case. Popular reaction was both predictable and suitably dramatic. But the media rarely questioned the quality of either the investigation or the trial. In an opinion poll conducted by a Kolkata daily, 64 per cent demanded capital punishment for Chatterjee, 60 per cent said dreaded criminals deserve death and 66 per cent claimed death penalties act as a deterrent. Voluntary organisations and the school where the victim studied, held meetings demanding that the convict be hanged. The media overkill spurred a rash of play-time hangings by children and had popular folk opera companies scripting shows.

Usha Ramanathan, an independent researcher on law and poverty, believes that the upsurge in death verdicts reveals a society that's reacting to new challenges. "We are developing a convoluted idea of the rule of law, of who has the right to belong and who doesn't, who is dispensable and who is not." To Ramanathan, death penalties become dime-a-dozen only when a society stops looking at criminals and focuses only on crimes. She questions the lack of debate on some vital issues: why so many of those hanged come from below the poverty line? Are they given adequate legal support by the state? "Instead of attacking the system, we are attacking people," she says.

  PICTURE SPEAK
"The legal system can introduce a separate sentence hearing board, which would work on objective standards to find punishment that will fit not only the crime but also the criminal."
N.R. MADHAVA MENON
LEGAL SCHOLAR
What does it all imply for our legal system? For some, it puts a question mark over the country's commitment to human rights. Although India stoutly defends death penalty at global conventions, its record is tame compared to Singapore (the highest rate, with 400 people hanged since 1991), China, Saudi Arabia or the US. "India retains a mysterious shroud of secrecy around information on executions," points out lawyer Bikram Jit Batra, who is also researching death penalties with Amnesty International. "There are no official statistics on the number of death sentences and executions, the number of people on death row or the grounds for capital punishment." The Prison Statistics of India publishes the number of persons executed just between 1995 and 2001. Media reports speak of a total of 55 executions since Independence. But last year the People's Union for Democratic Rights dug out a 1967 Law Commission report, which showed, at least, 1,422 executions between 1953 and 1963. "The hike in death verdicts in a system lacking in transparency is making the legal fraternity jittery," says Batra.

Some legal experts worry if the judicial system is error-proof. "Judges are no less prone to mistakes than politicians, reporters, doctors or engineers," asserts Bhagwati. After all, a judge gets to decide on the evidence placed before him. "It may convince a judge that the accused is guilty, but may not convince another." In the US, 123 innocent prisoners have been exonerated and released from death row since 1973. A recent report, Equal Justice USA, profiles 15 innocent people who have been executed. Reassuringly, the number of actual hangings is not rising in India. Eight capital punishments have been dissolved-for being either too harsh, or on account of age, or on grounds of wrong conviction this year. "Trial judges may go wrong, but there's room for correction in our system," says Madhava Menon.

The most-argued premise behind rising death sentences is that they deter crimes. "There's no evidence," argues Ramanathan. "Have the crimes stopped?" The facts are otherwise. In the state of Travancore, there were 962 murders between 1945 and 1950 when the death penalty was not in force; but in the five years from 1950 when it was re-imposed, there were 967 murders. In Canada, after the abolition of the death penalty in 1976, the homicide rate declined. A survey released in September 2000 by the New York Times, found that during the last 20 years, homicide rate in US states with death penalty had been 48-101 per cent higher than in those without. It takes more than stern legal steps to curb crime. Social and economic riders, obviously, play a bigger role.

 HALL OF INFAMY
KEHAR SINGH:
Found guilty in the Indira Gandhi assassination case. Hanged along with Satwant Singh in 1989.

DHANANJOY CHATTERJEE:
Hanged on August 14, 2004, for raping and murdering a teenager.

NATHURAM GODSE:
He was hanged on November 15, 1949 for assassinating Mahatma Gandhi.

RANGA & BILLA:
Executed in 1982 for raping and killing Geeta Chopra and murdering her brother Sanjay Chopra in Delhi.

THE DEATH ROW
NALINI:
She, along with three others, were found guilty in the Rajiv Gandhi assassination case. Her death sentence was commuted to life term. Others are awaiting a decision on the mercy plea submitted to the President of India.

SHRADDHANANDA:
The self-proclaimed godman has been awarded death sentence for burying alive his wife Shakereh Khalili in Bangalore. The Karnataka High Court has upheld the sessions court's verdict.

AFTAB ANSARI:
A Special CBI Court sentenced him to death for masterminding the attack on the American Center in Kolkata on January 22, 2002. He is now awaiting the high court's decision.

DARA SINGH:
The Orissa High Court set aside his death penalty in the case of the killing of Australian missionary Graham Stuart Staines and his two sons in Keonjhar district in Orissa on January 22, 1999.

The buzz is fast turning into a hum. The President of India has been calling for clemency and a 'comprehensive policy' on death penalty. The Chief Justice of India Y. K. Sabharwal has gone on record that he personally does not favour such sentences. But how does a nation cope with menaces like terrorism? "Stop politicising issues, for one," says Memon. "A just and fair trial is the obligation of the state, especially when the offence is so intense." Madhava Menon suggests the introduction of a separate 'sentence hearing board', which would work "on objective standards to find punishment."

With growing activism towards abolition of the death penalty, India's rising death sentences may provide grist for debate. And debates must continue. For, the very nature of the problem demands constant review-in order to stay tuned to the evolving standards of a maturing society. Such discussions will, hopefully, take India toward more humane solutions. The choice is ours.

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Khaleeli Murder: The Circle Of Death

Death Penalty: Hung Verdict


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INDIA TODAY - The most widely read newsweekly in South Asia.
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OCTOBER 23, 2006
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Date With Death

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