DEATH PENALTY IN INDIA: What do hidden figures signify?

 

Death penalty is the highest degree of punishment that can be sanctioned to an individual under any penal law in force in any part of the world. It has been in existence since the inception of the State itself. 

During the British rule in India, countless instances occurred where Indians were hanged to death either after the trial or even before it. In British Judicial system access to fair trial or justice was a farfetched dream for Indians. After 1947, when India became a democratic state, the system of awarding death penalties too changed drastically. The Indian Penal Code as well as other penal legislations in accordance with the provisions enshrined in the Constitution of India provides for awarding of capital punishment for certain specific offences. The Indian Judiciary too, as a matter of precedent applies the ‘Rarest of Rare’ doctrine before passing death sentence in a case (Bachchan Singh’s case). Hanging and shooting are the two methods of death penalty in India. According to the Criminal Procedure Code, hanging is the method of execution in the civilian court system. The Army Act, 1950, however, lists both hanging and shooting as official methods of execution in the military court-martial system. The president of India as well as the governors of States have the final authority to grant mercy/pardon in death penalty cases if a mercy petition is filed with due requirements.

The Indian Criminal Justice system at present, works on the principles of reformative-deterrent penal sanctions to prevent and control crime in society. It is based on modern approach towards reformation, rehabilitation and re-integration of offenders in the society. The ideal objective is not to punish the criminal but to reform them. So ideally, passing of death sentences, wherein no scope is left for reformation, is seen as last resort and is an infrequent phenomenon in India. The question is, really? We’ll know the answer but let the figures talk first!

• India witnessed 1410 cases wherein death sentence was awarded during the period between1953-1963, as reported by National Law Commission 1967. 

• Recently, National Law University Delhi (NLUD) released a report on death penalty in India, under Project 39A which confirms 755 executions of death sentences since Independence. Since 1947, the majority of executions have been carried out in Uttar Pradesh state which executed a total of 354 people, with the next highest number being Haryana with 90, and Madhya Pradesh with 73 executions as per NLUD. 

• Official government statistics claim that fifty-two people had been executed since Independence.

 However, research by the People’s Union for Democratic Rights indicates that the actual number of executions is in fact much higher, as they located records of 1,422 executions in the decade from 1953 to 1963 alone in the appendix of the Law Commission's 35th report on the Death Sentence. 

As obvious from above Statistical information the number of people executed in India since 1947 is a matter of dispute and there’s no doubt that this number may also be higher. But we cannot know the actual number since record on death executions is either unavailable or lost by various prisons as well as government departments. Not so surprising!

Well, this either shows the lack of responsible authorities in Indian Criminal Justice System or indifference of authorities towards the lives of offenders. In fact, one can also infer the lack of transparency in maintaining records of death sentence executions for reasons unearthed yet.

The question of presenting an ideal criminal justice system on the one hand, and hiding figures on the other, is a debatable one. However, there appears to be two major defences in the favour of State regarding the issue of hiding death penalty figures: 

1) Impact on International Relations: Till now India has maintained a clear stance in the international arena on the question of the validity of the death penalty in spite of the ongoing discussions and debates going on both inside and outside the country.

•) In the year 2007 when the UN proposed to all its member nations to put a stop on awarding death penalty in their respective states for any kind of offence, India firmly rejected the proposal. 

•) In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to end the institution of capital punishment globally.

Reference to above events is important, since many people think that the reason behind hiding figures is to seek relief from the pressure of various International organizations, including the UN for ending legality of Capital Punishment. 

2) Defence of National Sovereignty: The strongest argument by abolitionists against death penalty is that, it violates Human rights and does irreversible damage to the humankind. And there are plenty of International Human Rights Organizations, which have initiated a crusade against capital punishment. Many countries who have retained capital punishment in their legal system are at the receiving end of their criticisms, arguments, interventions, etc. And it is also a fact that most of the countries do not allow uncontrolled international interference in their domestic legal matters since it is seen as a threat to sovereignty of nation. India is no exception to this very fact.

But are these defences enough to keep the citizens ignorant about the status of death punishment in India? If it’s beneficial to the State then, yes!

Ignorance serves as the best method in preventing public questioning, criticisms and opinions against the State’s actions which are detrimental to its subjects. In the present context, the act of retaining death penalty in Indian Legal system, in spite of its proved uselessness, has already attracted a lot of questioning and criticisms from Scholars, Academicians, Legal Experts, Criminologists, Social Activists, Public spirited persons, Human Rights NGO’s etc. The futility of Death Punishment is evident from the following facts and figures:

•) The demand of Death Penalty in cases of Rape and sexual violence against women have been in focus in India since the Nirbhaya Gangrape case .The Four convicts of Nirbhaya Gangrape case, who survived the trial were sentenced to death in 2013 and executed on 20 March 2020, yet, it has not deterred or instilled a sense of fear in minds of rapists.

•)Government figures suggest, if more than 68 women were raped every day in 2012, the number increased to 91.38 in 2018. Total number of rape cases recorded in 2018 was 33,356. But this was not the highest number of rape cases recorded after Nirbhaya gangrape episode. This was recorded in 2016 when 38,947 cases of rape were registered. This means 106.7 cases of rape were recorded every day on an average in 2016. (NCRB data)

•) The death penalty has not deterred terrorism, murder or even theft. For over a century, stealing attracted the death penalty in England, where spectators at public hangings often had their pockets picked! And haven’t we witnessed numerous terrorist attacks in India (The Pulwama Terror Attack, 2019, the recent one for example), even after hanging of Yakub Memon in 2015, Mohammad Ajmal Amir Qasab on 21 November 2012 and Afzal guru on 8 February 2013?

•) Amnesty International’s argument on abolition of death penalty explains it rightly, “Governments often resort to the death penalty in the aftermath of violent attacks, to demonstrate they are doing something to “protect” national security. But the threat of execution is unlikely to stop men and women prepared to die for their beliefs – for example, suicide bombers.”

With all these facts proving the futility of death penalty, the argument of deterrence to retain Death Penalty nothing but a fallacy. But India continues to retain Capital Punishment by presenting its Criminal Justice System as an ideal one, where Capital Punishment is awarded carefully in rarest of rare cases only. 

(If you still believe this argument, which is far from reality, kindly read the abovementioned figures again).

Generally, Death penalty is criticised mainly on three counts: arbitrariness, irreversibility and violation of human rights. To reduce the arbitrariness of the death penalty, the Supreme court in the Bachan Singh case (1980) confined its application to the ‘rarest of rare cases’. But its imposition is still arbitrary and discriminatory against the unprivileged section of society. Even the 20th Law commission in 2015 stated that the constitutional regulation of capital punishment attempted in Bachan Singh case has failed to prevent death sentences from being “arbitrarily and freakishly imposed”. Contradicting its argument to retain death penalty in 1967, The Law Commission in 2015 advocated for abolition of death penalty (except in cases of terrorism and waging war against the state) on various grounds and one of those included its Discriminatory imposition.

There are many cases where innocent people have been wrongfully prosecuted and convicted. Those who have resources- financial, legal as well as social, are able to escape the clutches of Wrongful prosecution or Conviction (even the right prosecutions, unfortunately) but those who do not have the same, suffer for their whole life. And if the persons wrongfully convicted get death sentence, the loss perpetrated is irreversible. 

Just because a man does not have enough resources to prove his innocence , should not become the reason for his execution; Just because a man belongs to minority community or backward castes, thus exhibiting no or less resistance, should not be the reason for their wrongful prosecution, wrongful conviction leading (or not) to their death sentence.  But the recent Death Penalty in India report (2016) by NLUD, shows that a majority of surviving death penalty convicts (out of 373 interviewed) belong to backward classes, religious minorities and economically-weak sections. Also, 94% prisoners sentenced to death in terror cases are Dalits and religious minorities. The important question is why should a person die if the Criminal Justice System itself is compromised and the person is financially, socially and legally incapable to escape wrongful conviction? 

Perhaps, questions like these, which trigger the debate on futility, discriminatory and arbitrary nature of death penalty, are the reasons behind hidden figures in India. For any Authority it’s convenient to present lesser number of executions (because it implies even lesser chances of discriminatory or arbitrary imposition) than to be held accountable for lapses in these executions. Amidst the ongoing global Abolitionists v/s Retentionists debate, hiding figures seems a convenient escape for the Authorities favouring retention of Capital Punishment. This article does not intend to indulge in Abolitionist v/s Retentionist debate because at the end of the day, decision regarding abolition the death penalty solely depends on the lawmakers. But as long as Death Penalty is legal In India, we cannot remain ignorant about the issues underlying hidden figures, within the Indian Criminal Justice system.

By: Mansi Walia