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BRP Bhaskar: How the law takes its own course
May 10, 2016
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Exclusive to The Gulf Today

A study on the working of the death penalty has lighted up the tortuous path the law takes and the impact it has on the lives of the poor who get caught in its tentacles.

The pioneering research project undertaken by a group at the National Law University, Delhi, led by Assistant Professor Anup Surendranath, has resulted in the mining of much valuable data on the social and economic aspects of the death penalty and the vagaries of the justice system.

It has also led to the establishment of a Centre on the Death Penalty, whose sphere of activity extends beyond research to litigation and advocacy. At present it represents 40 death row prisoners. Its public affairs team promotes discussion on the death penalty issue outside the realm of law.

Members of the group interviewed 373 of 385 persons in the death row. They also traced family members of the convicts and talked to them. They could not meet 12 condemned prisoners as the authorities denied access to them.

While collecting data, the group noticed several systemic problems that dog the process of criminal investigation and justice delivery. Torture to extort confession was common. Failure to ratify the UN Convention against Torture, which India signed in 1997, virtually sanctions continuance of the medieval practice.

The group found that social and economic factors were at play in the breeding of crime. More than two-fifths of the death row prisoners belonged to socially disadvantaged sections and three-fourths were economically vulnerable. While the Constitution promises equality before law the long and costly process involved effectively denies it to the poor.

Add to it the vagaries of the legal process. The study revealed a wide gap between the approaches of the lowest and highest levels of the judiciary to sentencing. In cases which attract the death penalty less than five per cent of the trial court convictions met with the apex court’s approval. The higher courts set aside the conviction and acquitted the convicts in about 30 per cent of the cases and gave reduced sentences in the remaining cases.

More than 40 years ago the Supreme Court ruled that the death penalty should be awarded only in “the rarest of rare” cases. All too often courts have differed in their assessment of whether or not a case falls in the “rarest of rare” category.

Instances of the same court making conflicting assessments are also on record. A Supreme Court bench sent to the gallows a man who was found guilty of kidnapping a boy for ransom, saying it was a “rarest of rate” case. Earlier it had reduced the death penalty the lower court had awarded to a man who killed his wife and daughter while on parole after being convicted on a charge of raping the daughter, holding the case was not of the “rarest of rare” kind.

The most agonising part of the legal process is the prolonged period of uncertainty through which a death row inmate passes as he awaits the outcome of his plea for mercy. There have been occasions when this period extended beyond two decades. It is a period of acute mental stress as he remains trapped between hope and death.

While the Supreme Court has upheld the constitutional validity of the death penalty, the Law Commission, in a report last September, broke with past recommendations and proposed that the country move towards restricting its use to terrorism cases, where it was necessary for reasons of national security.

The growing national movement for abolition of the death penalty suffered a setback two years ago when the national outrage over a gang rape in Delhi prompted the government to toughen the law relating to grave sexual offences.

In justification of its new recommendation, the Law Commission pointed out that the murder rate had fallen from 4.6 per 100,000 people in 1992 to 2.7 per 100,000 in 2013. The rate of executions too had declined. National Crime Records Bureau’s figures indicated that the average number of persons sentenced to death now stood at 129 a year.

The police forces’ bias against the minorities is well-known. The rise of terrorism has led to the spread of prejudice to other sections too. In confirming the death penalty awarded to Afzal Guru, one of the accused in the Parliament attack case, the Supreme Court had observed that “the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender”. Many have taken exception to this observation, viewing it as proof of deviation from the standard judicial approach.

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 The author is a political analyst of reckoning

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