India: "Abusive lottery must be abolished"

The most comprehensive study of India's death penalty system ever conducted has concluded that it is an abusive and inconsistent process, hanging people on the basis of shockingly inadequate evidence.

Describing the system as a "lethal lottery", at the launch of the report on 2 May 2008, the study's authors said "the only remedy is to abolish the death penalty [in India] completely".

The landmark 243-page report Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-2006 was published by Amnesty International India and the People’s Union for Civil Liberties (Tamil Nadu & Puducherry).

Researchers analysed Supreme Court judgements handed down in more than 700 death penalty cases over a 56 year period.

Woefully few, too many
A summary of the study findings said the work was necessary "because of a vital gap that affected those campaigning against the death penalty: the absence of a comprehensive analysis of facts relating to the practice of capital punishment".

"There exist woefully few researched studies on the subject," it said.

Amnesty International reported at least 140 people were sentenced to death in 2006 and 2007. The most recent official figures, from 31 December 2005, showed at least 273 people were on death row, a figure which would certainly have increased.

"The fate of these death row prisoners is ultimately a lottery," the study's authors said.

This research was "the first to examine the essential unfairness of the death penalty system in India by analysing evidence found in Supreme Court judgments of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in capital cases".

It found that the death penalty was not limited to "rarest of rare cases" as claimed by politicians and courts. But "on the contrary, there is ample evidence to show that the death penalty has been an arbitrary, imprecise and abusive means of dealing with defendants".

Poor evidence, poor defence
The main failings identified in the report were:

1. errors in consideration of evidence -- most death sentences handed down in India are based on circumstantial evidence alone. In a 1994 Supreme Court appeal, the Court noted the main witness's memory constantly improved from his statement a few days after the incident to the trial three years later

2. inadequate legal representation -- concerns include "lawyers ignoring key facts of mental incompetence, omitting to provide any arguments on sentencing, or failing to dispute claims that the accused was under 18 years of age at the time of the crime despite evidence to the contrary"
anti-terrorist legislation -- concerns include "the broad definition of 'terrorist acts', insufficient safeguards on arrest, and provisions allowing for confessions made to police to be admissible as evidence"

3. arbitrariness in sentencing -- "in the same month, different benches of the Supreme Court have treated similar cases differently, with mitigating factors taken into account or disregarded arbitrarily"

4. failure of the courts and state authorities to consistently apply the procedures supposed to limit the death penalty to the "rarest of rare" cases.

The report also condemned a range of failings in India's death penalty system, which were at odds with international standards on the use of the death penalty.

These included expansion in the scope of the death penalty, mandatory death sentences -- for example for drugs and firearms offences -- and a lack of safeguards to prevent execution of children and the mentally ill.

Doing without, for how long?
Amnesty International welcomed the "current hiatus" on executions in the past decade, and said this "illustrates that the people of India are willing to live without the death penalty".

The last execution in India was carried out in August 2004, when Dhananjoy Chatterjee was hanged for the 1990 rape and murder of a girl. He was the first person to be hanged in India for over six years, having spent more than 14 years in prison.

However this week the Times of India reported that on May 16 a Bettiah court issued a "black warrant" for the execution of Prajeet Kumar Singh.

The newspaper said authorities in Bhagalpur Central Jail were preparing for its first execution in 13 years, which by law must take place between 21 and 28 days from a warrant being issued.

It quoted prison superintendant Uma Kant Sharan as saying the gallows would have to be readied and a hangman recruited.

"A separate request will be made to manufacturers of the special noose rope in Buxar," he said.

Prajeet's family, however, has reportedly lodged a petition for mercy with the President.

Related stories:
India: The politics of hanging -- 16 January, 2007