Mumbai: On April 21, 2018, the Indian government passed an ordinance allowing death penalty for the rape of children younger than 12 years. But is capital punishment an effective deterrent?

Human rights bodies and the United Nations have argued that the death sentence is inhuman and cruel and should be abolished. In India, the debate was revived in the wake of the ordinance.

Apart from the humanitarian argument, latest data also indicate that in India trial delays make the death sentence ineffective and result in protracted waits for the accused and their families.

There were 371 prisoners on the death row in India by end December 2017 with the oldest case from 1991, 27 years ago, according to the Death Penalty in India report published in January 2018.

The number of death sentences also fell. In 2017, 109 were sentenced to death by sessions courts across states, down 27% from 149 in 2016, said the report published by the Centre on the Death Penalty, an advocacy.

However, only four death-row prisoners were executed in the last 13 years. One had raped a minor and three were convicted of terrorism.

“Death row prisoners continue to face long delays in trials, appeals and thereafter in executive clemency,” the Law Commission of India 2015 report on the death penalty said. “During this time, the prisoner on death row suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution.”

The average time for trial of the 373 prisoners facing death row was five years, as per an earlier study carried out between July 2013 and January 2015 and published in February 2016 by the Centre on the Death Penalty. The trial of 127 prisoners lasted for more than five years and of 54 prisoners continued for over 10 years.

Among the prisoners whose mercy petitions were rejected by the President of India, the median time spent in prison under trial was 16 years nine months, and median time under sentence of death was 10 years five months.

The longest time spent by a prisoner in jail in such cases was 25 years, and the longest time spent on death row was 21 years one month.

On May 4, 2018, the Supreme Court reserved its order on the plea of two of the four condemned convicts seeking a review of its 2017 verdict upholding the death penalty awarded in the Nirbhaya gangrape and murder case, the Business Standard reported on May 4, 2018.

The survivor’s mother has been pressing for a speedy execution of the death sentence. "There have been times when my faith in law and justice is restored but as the court hearings get deferred by I feel extremely hopeless,” Nirbhaya’s mother said, the Deccan Chronicle reported on May 5, 2018.

But the convicts’ lawyer maintained that the state does not have the right to execute a convict. "Execution kills the criminals and not the crime… How can judiciary decide as to who should live and who should die," said AP Singh, the lawyer for the two convicts.

The new ordinance may not help prevent the sexual abuse of children either. “It would worsen the problem of under-reporting. It is crucial that the government consult with child rights groups and undertake a detailed study of the implementation of POCSO to ensure that the issue of child sexual abuse is actually addressed,” said Poornima Rajeshwar, associate (public affairs) at the Centre on the Death Penalty.

“Each case after it has been confirmed at the trial court stage has to be sent to the High Court for confirmation,” Rajeshwar told IndiaSpend. “Post confirmation at the High Court stage, it can be appealed at the Supreme Court. Besides the judicial process, a prisoner can also file mercy petitions with a Governor and the President.”

She pointed out that an execution cannot be carried out before these two parallel processes have been completed, including all the appeals at different stages. “This, as you can see, constitutes quite a long process. Additionally, the burden on Indian courts makes it difficult for cases to move too fast,” Rajeshwar said.

Executions In India In The Recent Past

On August 14, 2004, Dhananjoy Chatterjee was hanged at Alipore Central Jail in West Bengal on his 42nd birthday, convicted for the rape and murder of a teenage girl.

On November 21, 2012, Mohammad Ajmal Amir Kasab the only terrorist to have survived the 2008 Mumbai terror attacks, was hanged in Pune’s Yerwada Jail.

On February 9, 2013, Mohammed Afzal Guru, a convict in the 2001 Parliament attack case, was hanged inside Delhi’s Tihar jail.

On July 30, 2015, Yakub Memon, a convict in the 1993 Mumbai serial blast case, was hanged at a jail in Nagpur, in Maharashtra.

‘India becomes 14th country to introduce death penalty for child rape’

The gangrape and murder of an eight-year-old girl in January 2018 in Kathua, Jammu & Kashmir, and the 2017 rape of a 17-year-old girl in Unnao, Uttar Pradesh, had led to calls for more severe punishment for such crimes. Three months later, the government passed the ordinance.

“India has become the 14th country now to have introduced death penalty for rape of child (without murder). The primary argument, especially in popular discourse initiated by political rhetoric, has been that death penalty has a certain deterrent effect on potential offenders and hence it should continue to be a practice of punishment for heinous crimes,” Rajeshwar said.

Empirical evidence has yet to suggest that the death sentence can work as a deterrent, she said, citing the 2013 study, Deterrence and the Death Penalty, by the National Research Council of the National Academies. “It concluded that deterrence is a flawed concept, at least in the context of the death penalty,” Rajeshwar said.

The Law Commission, in its 2015 report on the death penalty and the Justice Verma Committee, questioned its deterrent effect and did not recommend its use for sexual crimes, Rajeshwar added.

86% death sentences in 2017 for murder/murder involving sexual offence

Of the 109 prisoners awarded death sentence in 2017, 43 persons (39%) were sentenced to death for murder involving sexual violence--where the main offence along with the murder charge was rape. This was up 79% from 24 persons who were awarded the death sentence for similar crimes in 2016.

Most death sentences--to 51 persons (47%)--were awarded to prisoners convicted only for murder, termed as ‘murder simpliciter’ in 2017. Other offences leading to death sentences are ‘rioting and murder’ (5),‘terror’ (5), ‘kidnapping and murder’ (3), and drug offence (2).

Death sentences under murder simpliciter and murder involving sexual violence accounted for 86% of all death sentences awarded in 2017.

In 2017, the most death sentences--to 23 people (21%)--were awarded in Maharashtra, followed by Uttar Pradesh (19) and Tamil Nadu (13).

The most death sentences were awarded in 2007 (186), followed by 164 in 2005, IndiaSpend reported in July 2015, based on the analysis of government data between 2004 and 2013. Ninety five prisoners were awarded death sentence in 2014, and one executed in 2015 with 101 granted death sentences.

As many as 720 prisoners have been executed in India since 1947, Centre on the Death Penalty data show. Uttar Pradesh accounts for nearly half (354) of all executions in India since 1947, followed by Haryana (90) and Madhya Pradesh (73).

India among 56 countries to retain death penalty

Death sentence has been abolished in 142 countries in law or practice across the world while 56 have retained it, according to this March 2018 report by Amnesty International, a global human rights advocacy.

Apart from India, other prominent countries that have retained death penalty are United States of America, China, Japan, Bangladesh, Indonesia, Malaysia, Pakistan, Saudi Arabia, Singapore, Thailand and United Arab Emirates.

Death Sentences And Executions In Selected Countries, 2017
Countries Death Sentences Executions
China 1000+ 1000+
Iran 507+
Saudi Arabia 1+ 146
Iraq 65+ 125+
Pakistan 200+ 60+
Egypt 402+ 35+
United States 41 23
Afghanistan 11+ 5
Malaysia 38+ 4+
Japan 3 4
Indonesia 47+
India 109

Source: Amnesty

More than 1,000 death sentences and executions were reported in China in 2017, Amnesty data show. The exact number of executions is not known as China classifies them as state secret.

The US reported 23 executions and awarded 41 death sentences, while India’s neighbour on west, Pakistan, executed more than 60 people and awarded death sentences to over 200 in 2017.

(Mallapur is an analyst with IndiaSpend.)

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