If you cannot give convicts a painless death, don’t kill them! In India, the executioner is supposed to break the criminal’s neck with the jerk of the rope, but often this is not done properly. The convict is hanged, but if he doesn’t die the first time, the hangman repeats the process. To my mind, nothing can be crueller.
There is also another aspect—that of ethnicity. In the US, more African Americans are on death row than Whites, and their execution far outnumbers that of other races. The races of the victim and the accused in capital punishment cases are major factors in determining who is sentenced to die.
In 1990, a report from US Accounting office concluded that studies revealed that the race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, that is, those who murdered Whites were more likely to be sentenced to death than those who murdered African Americans.
There are far greater chances of conviction if the 145 offender is an African American before an all-White jury, especially when the victim is White. Although almost half of those murdered in the US are African Americans, 77 per cent of those executed, since 1977, were found guilty of murdering White victims. When the colour of skin decides whether one will die or not, it is high time the justice system should ask the question: should death be given at all, especially by a select few who may be prejudiced against the accused for various reasons?
In India, too, the class bias is obvious. And there are hard facts to prove this. A study was conducted by National Law University students, with the help of the Law Commission, and they came up with definite proof that the poor and those belonging to the backward classes get the gallows, while the rich escape. The wealthy and the privileged can afford to engage a battery of lawyers well versed with the law and ready to burn the midnight oil to find loopholes in the prosecution’s case. Most of the others cannot. National Law University students interviewed 373 death row convicts over a 15-year period and found that 75 per cent of those given the death penalty belonged to backward classes, religious minorities, and were from economically weaker sections. As many as 93.5 per cent of those sentenced to death for terror offences were Dalits or religious minorities. The gallows are thus only for the marginalized. This, to my mind, is definitely not ‘equality before the law and equal protection of law’—a fundamental right granted by the Constitution, which is the holy book for our lawmakers and protectors of civil society.
An argument generally offered in favour of the death penalty is that it seeks to make an example of the person on death row and bring about deterrence. No one will ever dare to kill a fellow being or commit a heinous crime after seeing the horrifying manner in which a brutal criminal is executed.
But the question is: does execution really bring about deterrence? There aren’t too many statistics available to support this view, either in India or abroad. There is also little evidence to prove that the countries that have abolished the death penalty have a greater incidence of crime than those that have retained it.
Let us take the case of an innocent man on death row. The judicial system not only in India but the world over is imperfect. To nail an accused, one tends to rely on eyewitnesses, the circumstances, and various reports given by the experts: forensic, DNA, etc. Eyewitness accounts and the depositions of other witnesses may be full of discrepancies, showing that the witness lied or that his/her report is not foolproof. This can be brought out by a good lawyer during cross-examination. The flaws are revealed to the judge at the time of the final arguments when the question of conviction and the sentence are decided. But what if the lawyer fails or is incompetent?
Consider this: a defence lawyer who has not been paid much may participate in the trial in a half-hearted manner and not work hard enough to discover and point out flaws in the prosecution’s case. Lawyers have to earn to keep their office running. A meagre fee is hardly an incentive to work hard. A rich client thus stands a better chance of winning their case, while their poor counterpart is left to rot in jail, and, at times, face the hangman’s noose.
Beside several other factors, the size of one’s pocket, skin colour, political strength, or affiliation can decide whether one should be hanged or not. Is that justice?
Kanimozhi, a member of the Indian parliament, highlighted these factors in her article published in the Hindu on 5 June 2013. 6 She wrote, ‘On 3 June 1949, Professor Shibbanlal Saxena, a freedom fighter who had been on death row for his involvement in the Quit India Movement, spoke in the Constituent Assembly of how he had seen innocent people being hanged for murder during his days in prison. Proposing the abolition of the death penalty, he said that the avenue of appealing to the Supreme Court “will be open to people who are wealthy, who can move heaven and earth but the common people who have no money and who are poor will not be able to avail themselves of it”.’
Kanimozhi said in the same piece, ‘Last year, 14 eminent retired judges wrote to the President, pointing out that the Supreme Court had erroneously given death penalty to 15 people since 1996, of whom two were hanged. The judges called this “the gravest common miscarriage of justice in the history of crime and punishment in independent India”.
They were talking about the wrongful execution of Ravji Rao and Surja Ram. It is chilling to read about the execution of a person who did not deserve to die. Ravji Rao Ramchandra was a tribal who lived in Rajasthan’s Banswara district. He was convicted and later sentenced to death for killing his pregnant wife and three young children. There was no apparent reason for the gruesome killings. Why did the man suddenly kill his wife and children while they were sleeping? No one had an answer. He was also convicted for the attempted murder of his mother and a neighbour’s wife, and for killing another man, Gulabji, who was coming towards the house of the neighbour when he heard her shrieks.
Ravji was sentenced to death on 5 December 1994. This was confirmed by the top court in 1996, which held that ‘it is the nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial’. He was hanged in May 1996 at Central Jail in Jaipur. As he approached the gallows, he asked for forgiveness, to which Mr Bissa, the jail superintendent, replied, ‘You forgive us.’
The 14 retired judges acknowledged that Ravji was wrongfully executed, his punishment based on an incorrect reading of Bachan Singh’s ruling. He was sentenced to death for the crime committed, and important circumstances, such as the socio-economic factors responsible for his action, were not considered at the stage of sentencing. This was a flawed understanding of the law as laid down by the top court in Bachan Singh, the judges said.
This excerpt was taken with permission from the book ‘Demons and Demigods: Death Penalty in India’ by Aparna Jha. It was published by Oxford University Press in 2019.