Release of AI India new report on Death Penalty

Lethal Lottery: The Death Penalty in India- a study of Supreme
Court Judgments in death penalty cases 1950-2006
Press Conference & Strategy Session
The Proceedings
2nd May, 2008

The issue of Death Penalty has always had a controversial relationship with the Indian polity both at the moral /ethical front as well as in terms of constitutional and legal jurisprudence. The venues were the Press Club of India and India International Centre, and the occasion- release of the report titled ‘The Death Penalty in India- A Lethal Lottery: A Study of Supreme Court Judgments in Death Penalty cases 1950-2006’ jointly brought out by Amnesty International India and Peoples Union for Civil Liberties (PUCL), Tamil Nadu & Puducherry, followed by a Strategy Session on the same.

Press Conference

Starting the press conference, Mukul Sharma, Director, Amnesty International India, laid out the reasons as to why Death Penalty needs to be opposed. Since Death Penalty judgments are irrevocable and violates the right to life, it does not deserve to exist in the statute books of the modern international criminal justice system. It is discriminatory in nature, more often than not used against the marginalized groups and has no empirical basis to prove that it is a better deterrent to crime than any other form of punishment. He believed that the report would fill the gap that exists in our knowledge of Death Penalty due to lack of any comprehensive study on the issue in India and said that the document tries to further our understanding of the subject in a more objective, informative and analytical manner.

Bikram Jeet Batra who has researched and written the report said that it restricts itself to the judicial award of Death penalty and argues that the “rarest of rare cases” which is the cornerstone of any judgment related to Death Penalty has a meaning which is ineffective and ambiguous as there are no clear guidelines as to what this formulation means. According to him capital punishment has become arbitrary and freakish which can be noticed in the manner in which the various safeguards and necessary requirements for the execution of a convict is not adhered to. It is precisely because of this arbitrariness coupled with the errors that creep into the procedure that he describes this whole system as a ‘lottery’. Citing a couple of findings from the report, he pointed out that out of the 720-odd cases studied in this report, in 1 out of every 8 cases all the three courts i.e. the trial court, the High Court and the Supreme Court has given three different judgments based on the same facts presented before each one of them. He also brought out the fact that out of those cases researched, there have been 175 instances where the higher courts have acquitted those whom Death Penalty had been awarded by the lower judiciary. Summing up his presentation, he said that the judicial award of capital punishment is a deeply flawed one and the ones who have to bear the brunt are the poor sections as they don’t have access or means to adequate defense counsels.

V.Suresh, President, PUCL, Tamil Nadu/Puducherry in his remarks said that the report which is an outcome of 10 years of extensive research is one with a difference as it is not an academic exercise but emerged out of the need to look at the entire judicial process in the country. He also made a humble submission that since there are many more such cases which could not be tracked because of the paucity of a comprehensive database, only those cases has been taken up which they could locate. Terming the dissent of Justice Bhagwati in the Bachan Singh case as the guiding factor, he argued that awarding death sentences in today’s day and age is discriminatory, biased, arbitrary and capricious. He advocated the need to look at the entire body of the Supreme Court, the social background and the philosophy of the judges in order to have a holistic understanding of judgments relating to capital punishment. In his concluding remark, he emphasized on the significance of giving proper attention to the social philosophy and the social context inside as well as outside the court as they, in most cases, determines the final outcome of a judgment.

Paminder Parbha, Campaigner for India at the International Secretariat, Amnesty International described the report as one which exposes the myths and arguments that are propagated to defend the defunct methods of the criminal justice system. While most of the nation-states have abolished Death Penalty, she said that India denies such intervention by organizations like Amnesty International and considers such intrusions as unwarranted since it believe that it has enough safeguards in its constitutional procedures to limit discrepancies pertaining to cases involving Death Penalty. Criticizing India’s vote against the UN moratorium on Death Penalty which was signed by 104 countries, she said that the Indian establishment holds on to the issue of capital punishment as a political security blanket. She also lamented about the current trend wherein arguments about Death penalty are not based on reason or mature understanding but media polls. She stressed on the need for an independent, transparent and reasoned debate on the issue and also hoped that the findings will help to infuse a new rationale in the country’s thinking. Lastly, she threw up the question as to whether India as an emerging power would like to be in the group of China, Iran, Saudi Arabia, USA and 20 such other countries who have not abolished Death Penalty or it would prefer to be part of those 131 countries which have either abolished it or where it is not practiced anymore.

In the question and answer session that followed after the presentations, a variety of issues were discussed ranging from matters of judicial and police reforms to questions related to Legal Aid and assistance. The speakers rounded off the session by putting forth their view that complete moratorium followed by legislation and finally abolition is the only way to go about the subject of Death Penalty.

Strategy Session:

The Strategy Session on Death Penalty held at the India International Center was attended by a large number of scholars, professionals and human rights activists. It started off with a brief presentation by Bikram Jeet Batra of the report where he reiterated the arbitrariness and impreciseness of the death sentences that are handed out mainly to the poor and the downtrodden. He also highlighted the fact that the judicial process is riddled with errors in terms of pre-trial investigation, collection of evidence, fabrication of confessions and police collusion. Questioning the basis on which clemency is granted, he stated that in this domain too the government’s track record has been sketchy.

The role of the media facilitating Death Penalty cases came in for special scrutiny. The issue was raised by Javed Naqvi who wondered how one can insulate such cases from the purview of the media and the extent to which it influences the course of justice. Imtiaz Ahmad, who chaired the session, as a point of critique argued that the issue of Death Penalty is supposed to be within the framework of human rights and moral rather than procedural jurisprudence. In his opinion the movement for the abolition of Death Penalty has not garnered mass support because of the absence of a single case in which there is unanimity that the sentence is wrong.

V.Suresh urged to look into the politics behind the debate on Death Penalty in the Supreme Court and said that capital punishment is both morally irreprehensible as well as legally untenable. He also brought to light the manner in which the blame game is played out between the Supreme Court and the political parties regarding the issue thus restricting the potential for more sophisticated debates. Bikarm Jeet Batra pitched in to point out the difficulty in grasping the politics behind the whole advocacy of Death Penalty as the past dispensations have thrown up paradoxical results as far as the subject of death sentences is concerned.

In the last session of the day devoted to brainstorming for future action, Ashok Chowdhary focused on the need to understand the reason as to why a majority of the country supports capital punishment. In his analysis the way the society has evolved from a feudal value-system has a lot to do with the manner in which killing the ‘other’ is eulogized. Therefore it is extremely crucial to bring into the debate the section which is out of the mainstream. Picking up the argument from the previous speaker, Javed Naqvi opined that the people of today’s age still carry the civilizational language of the cannibal era and locating our understanding in that linguistic domain might throw up fruitful results. He also said that there is a greater penchant for Death Penalty among those who are part of the market. Therefore, according to him, to win this battle of abolition of Death Penalty, one needs to reach out to the pale which is outside the market structure and thus democratically defeat the votaries of capital punishment.

Sanjoy Hazarika commenting on the issue of media stressed on the importance of developing sensitivity among the media persons and this sensitization can only be brought about through capacity building. Ashok Bharati pointed out the dilemma as to what should be done with them who commit atrocious crimes on innocent Dalits and marginalized groups. Also, the question of evolving alternative punishment mechanisms to deal with such crimes was put forth by him. He also warned to tread cautiously on the issue as the social realities of India and other foreign countries are different, so what may have been successful there might not work in the present context.

Ms. Usha Ramanathan brought out the significance of the issue of impunity and said that there is a frivolity in the way crimes by the powerful are tackled. For her, abolition of Death Penalty cannot be too far away from the campaigns against impunity in cases of disappearances, custodial killings and torture. She also asked to be careful about focusing on individual cases as it runs the danger of falling into a trap.

Bikram Jeet Batra, taking a contrarian view argued that since most of the abolitions have taken place without any public opinion, there is no need for a campaign solely devoted to a particular case. What needs to be done in fact is to involve in this mobilization the greater public in a larger area of focus which looks into broad questions of class, religion, ethnicity, bias, impunity etc.

A few of the other suggestions that cropped up during the brainstorming session were the need to have court or trial observers in cases which are deemed crucial and to strike up a conversation with the affected groups whose plight is often forgotten in the frenzy surrounding a death sentence. Finally, the general consensus was that to reach an effective conclusion one needs to put together the sporadic campaigns and weave them into a larger framework.