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  • Ekta Kumar

Justice In a Hurry, Is Justice Denied - Death Penalty

Over hundreds of years we have slowly moved from a life of savagery and barbarism to a state of civilisation, that is marked, amongst many other things, by the evolution of human rights. And one of the most fundamental rights - is the right to life. Why is it then that death penalty still exists? In a modern, progressive society, why do we still allow, and in some cases demand what is sometimes described as 'state sanctioned murder'.

In a democratic country like India, politics often follows the popular mood of the people. And when faced with heinous crimes, the people very often just want revenge. We saw the uproar after the horrific Delhi gang rape case of 2012, it sparked protests across the country with thousands pouring onto the streets demanding the perpetrators be hanged. Under enormous public pressure the government fast-tracked the case and sentenced the guilty to death. We saw a similar outcry after the Unnao and Kathua rape cases too, after which the government passed an ordinance to amend POCSO (Protection of Children from Sexual Offences Act) to provide death penalty for aggravated sexual assault on children.

Over the last few years there has been a lot of media attention and public focus over sexual crimes against women. It is an emotive issue, and one that is especially relevant in the current context of elections, high number of women voters, gender inequalities and the demand for safety. This might be the reason for the exceptional haste by the trial courts in handing out death sentences especially for sexual offences. There were a record 162 death sentences issued in 2018, the highest ever in nearly two decades. Although the judicial system in India is notoriously slow, when it comes to sexual offences, the courts are moving faster.

As per data from Project 39A (National Law University) the median duration of trial for - sexual offences : 1 year, 6 months Versus, national average : 3 years, 2 months terror cases : 8 years, 4 months It took all of 9 days for Umang (name changed) to be convicted and sentenced to death by the trial courts. 'I was beaten in the police lock-up for five days, and taken to court for another five' he said (NLU). Umang is not the only one. There are numerous other instances of trials that barely lasted a few days, without proper legal representation or due procedures. Out of 162 death sentences, Madhya Pradesh tops the list with 22. The state government has devised a reward system for incentivising public prosecutors seeking death penalty and issues strict warnings to those who fail to collect adequate number of points. Justice Kurien Joseph in a powerful dissenting opinion spoke about the 'arbitrary and freakish' imposition of the death penalty and the worrying role of the 'collective conscience' in sentencing. The phrase 'collective conscience of society' was brought into India's death penalty ambit in the Machhi Singh vs. State of Punjab case. It has been used to impose death penalty when it reflects the will of the people and answer society's 'cry for justice'.

However this can set a dangerous precedent as prejudices creep in, especially in the times of 'breaking' television news and all pervasive social media. Does the accused in a well publicised case, that generates an outcry deserve to die because enough people are baying for his blood, while the accused in a lesser known case gets away with lesser punishment? Are trial courts pandering to us. Is the 'collective conscience' weighing in on matters of life and death. Are we as a society deciding their fate?.

Interestingly although there seems to be undue haste by the lower courts in handing out the harshest punishment in our legal system, the Supreme Court has moved in the opposite direction. Out of the 1486 death sentences imposed by the trial courts, only 73 (4.9%) remained on the death row after the appeal in the Supreme Court was decided. Between Nov-Dec 2018 the Supreme Court commuted 11 out of the 12 death sentences to life imprisonment. The only one that remained was the December 16th, 2012 'Nirbhaya' rape case. The median duration of trial is the shortest for sexual offences in the trial court and High Court stages but the trend is reverse for the Supreme Court.

There is an obvious disconnect between the lower courts and the Supreme Court. When confronted with crime, there is an instinctive desire for revenge. The natural tendency is to is to hurt someone who wrongs us, but an emotional impulse for retribution is not enough to justify capital punishment. 'History is testament to the desire for vengeance' says Raphael Chenuil-Hazan (ECPM), 'but abolition of death penalty is the foundation of human rights'.

Public outcry seeks visible, immediate solutions, but it should be up to the courts to be objective and fair while upholding the provisions of the constitution. The discussion around capital punishment cannot be limited to the brutality of the crime. It needs to consider several other parameters, like the socio-economic background, the families, the structural impediments within the criminal justice system and the purpose of capital punishment.

Violence against women is a harsh reality, but an outpouring of collective anguish or anger and populist calls for retribution cannot be the basis for deciding on another human's right to life. We are seeing a curious inversion where the trial courts are quick to hand out capital punishment, but the appellate courts are careful and wary. In these times it is important to remember Mahatma Gandhi who said - "in matters of conscience, the law of the majority has no place."

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