Death penalty shows just how political in nature the criminal justice system happens to be in India

[dropcap]R[/dropcap]uling on a batch of petitions filed by Tehseen Poonawala and others on the increasing extra-judicial criminal acts of mob lynching in the country, the Supreme Court of India recommended that the Parliament may create a special law against lynching, and also laid down guidelines to curb mob violence. In the wake of this ruling, it was reported that the Central government is now proposing death penalty for the criminal offence of lynching. The Union Minister of State, Home Affairs, Hansraj Ahir said that, "the proposed Bill will be on the lines of a legislation seeking capital punishment to those convicted of raping girls below the age of 12 years".

Further, on July 30, 2018, the Lok Sabha passed the Criminal Law (Amendment) Bill, 2018, which proposes death penalty as the maximum punishment in cases of rape of girl children below the age of 12 years. As has already been criticised by activists and lawyers working on the issue of abolition of death penalty, these developments are nothing but kneejerk responses by the ruling dispensation to increasing mob and sectarian violence and systematic dilution of rule of law in the country. 

Kneejerk response from State

Prescribing death penalty as a means to curb gruesome violence is the easiest approach available to the State without having to do the hard work of trying to make the broken criminal justice system actually function. Having capital punishment on the statute books deflects the real issues in hand — that is, diagnosing the criminal justice system in its entirety. The death penalty is another method of policing vulnerable communities and is symptomatic of what the current criminal justice system already is. However, due to its degree and irrevocability, it stands on a different footing. The criminal justice system is political in nature and the death penalty is one instance of how political it is.

Here, an attempt is being made to analyse the functioning of criminal justice system and the retributive nature of death penalty through caste and communal dimensions.

All aspects of the criminal justice system are politically tinted, such as, who is to be arrested and investigated, who is likely to be unrepresented or poorly represented at trial, who the judge thinks is more likely to have committed the crime and deserves punishment, and whether the mercy petition is considered or not. The death penalty is thus unique also because of the role of the Executive in commuting the sentence.

Caste, communal politics of death penalty

It is not difficult to trace how the State treats different cases differently. In Bihar, in the 1980s-2000s, several massacres took place between the land-holding upper-caste Bhumihars, who had formed a militant group called the Ranvir Sena on one side, and the landless Dalit labourers on the other. There were several attacks and counter attacks, but the way the criminal justice system reacted is noteworthy. The State chose to invoke the Terrorist and Disruptive Activities (Prevention) Act ("TADA"), a special law, against only Dalit agitators, but when the Ranvir Sena led their attacks, only the general Indian Penal Code was invoked. The criteria of an armed militia, subversion of the rule of law were all fulfilled, but the TADA was never invoked against the Ranvir Sena.

In the 1996 Bathani Tola massacre of Dalits, all the Ranveer Sena accused were acquitted in either the Sessions or the High Court. In Krishna Mochi and ors. v. State of Bihar, [2002 (6) SCC 81], six Dalits were accused of massacre under the TADA. The Supreme Court decision started with describing the struggle of the Bhumihars being denied their right of land. While one Judge concluded saying there was complete lack of evidence and they were entitled to an acquittal, the other two upheld the death penalty. Finally, former President Pranab Mukherjee, against the advice of the cabinet, commuted the death sentence.

Every stage of the criminal justice system treats people differently, including specified investigation agencies like the National Investigation Agency ("NIA"). In the Hyderabad Mecca Masjid case, all the accused belonging to the Hindu militant outfit, Abhinav Bharat, were acquitted because the prosecution witnesses were not examined properly. In most bomb blast cases, if a Muslim person is arrested, bail is not given and since the special law allows for a prolonged custody of 180 days, trial drags on until the spirit of the person is broken. Then the NIA convinces them to plead guilty, by saying that they will not get more than seven years imprisonment, otherwise the trial will go on and on. Naturally, the accused would often be left with no choice but to accept that deal upon which the NIA says that they got a conviction.

Any case of gunning, waging war, conspiracy, murder, arson, all are provided for under the IPC, but if tried under it, the Criminal Procedure Code and Indian Evidence Act would apply, which seek to protect the accused from certain acts of the State. For example, Section 25 of the Indian Evidence Act states that a confession to the police officer is not admissible evidence. Hence, special laws like the TADA and POTA are used, which allows the state to take away certain rights of the accused. The invocation of special laws is a political strategy: who is more likely to be tried under them and for whom is TADA, POTA meant — it's not for general crimes, but only for aggravated offences, most often invoked against certain classes of people, usually marginalised communities. The death penalty is not just a standalone punishment but the product of a system, where the moment a special court is constituted and a special law is applied, the accused is more likely to get the maximum prescribed sentence, including the death penalty.

Saibanna Natikar was sentenced to the death penalty for the murder of his wife, where he became friends with an inmate, who wished for him to marry his daughter. He accordingly gets married and has children and visits them on parole. He starts suspecting that she is having an affair and ends up killing his wife and children, and then tries to commit suicide. This case happened around 1989 and the accused was tried under section 303 of the IPC, which provided for mandatory death penalty for murder by a life convict.

Even though this section was struck down in 1983 in Mithu v. State of Punjab5, the accused was unaware of the law, and since he was poor, the State appointed lawyer would not appear for most of the hearings. In the end, he gets sentenced under section 303, thereafter, before the High Court, one judge confirms the sentence whereas the other recognises this gross error. A third judge then confirms the sentence and even the Supreme Court appeal is dismissed. There was a huge outcry as this sentencing was wrong on the very face of it. Subsequently, 14 judges, admitting their mistake, themselves wrote a mercy petition for the accused. While these events were unfolding, the 2012 rape took place. Even though the Justice Verma Committee as well as the feminist activists insisted on not wanting the death penalty, the government didn't understand these nuances. The accused Saibanna Natikar has been on death row now for 28 years and this has been due to a combination of factors: the criminal justice system as well as the death penalty is highly political, in a country that is political against certain communities and castes.

Acquittals for atrocities against Dalits

Moving forward, it is pertinent to look at some important cases of atrocities against Dalits to understand the prejudiced and distorted functioning of the criminal justice system.

• 8 Dalits were killed in 1991 in Andhra Pradesh and a special court was set up for the first time, with 41 accused on trial. No evidence was apparently found and all the accused were acquitted.
• In the Nagari Bazaar massacre, 10 Dalit CPI supporters were killed and all 11 accused were acquitted in the High Court.
• 32 Dalits in Aurangabad were killed in 2000 and in 2013, 9 of the 10 accused were acquitted.
• In Tsunduru, Dalit massacre a mob chased 8 Dalits into a field and murdered them. Only 35 persons were convicted of the 200 plus that were charged, after a 16 year delay in pronouncing judgment from 1991 to 2007.
• In Kambalapalli, Karnataka, seven Dalits were burnt alive. After a trial that lasted over six years, the Kolar sessions court acquitted all the 32 accused, after all 40 witnesses in the case turned hostile.

With caste being the determining factor in India, and no proper representation of marginalised castes in the judiciary and in the police department, no other result can be expected than the above. Caste is an ideology, a practice, which may or may not be visible, but this notional idea extends beyond physical boundaries.

Many vulnerable communities in India are under threat today due to this new air of retribution, of mob lynching, of failed criminal justice delivery mechanisms, and it is vital to understand the death penalty in this context. The Justice Verma Committee Report looked at the dimensions of sexual violence and death penalty and even at the critical juncture when the country wanted the blood of rapists, and the judiciary was inclined to give in to the "collective conscience" argument, in the midst of that atmosphere, the report was against capital punishment.

We need to be careful with what crimes are considered a law and order problem. Lynching by cow vigilantes will always remain a law and order issue and states are expected to address it, but other issues become socio-economic problems. It is thus a play of how the State uses the criminal justice system politically such that certain things will never give rise to a special consideration. There is an urgent need to address this issue, with violence now being legitimised by the government to an extent that mob lynching and violence against women, although historic, is now becoming normalised and it certainly doesn't help that the State itself is becoming a lynch mob. We need to find other restorative justice models and take the conversation forward so as to not make it revengeful justice which will perpetuate violence.

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