OPINION

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Belated acquittal of death row convicts highlights the need to junk the death penalty

It is a tale of Kafkaesque horror. Six members of a nomadic tribe spent 16 years in prison in Maharashtra; three of them were on death row for 13 of these years, while the other three faced the gallows for nearly a decade. One of them was a juvenile at the time of the offence. And all this for a crime they did not commit. The only silver lining for the six convicts is that even though 10 years had elapsed since the Supreme Court imposed the death penalty on them, the sentence was not carried out. Hearing on their review petitions became an occasion for another Bench of the Supreme Court to revisit the 2009 verdict. A three-judge Bench has now found that unreliable testimony had been used to convict the six men. One of the two eyewitnesses had identified four others from police files as members of the gang that had raided their hut in 2003, but these four were not apprehended. The gang had stolen Rs. 3,000 and some ornaments, killed five members of the family, including a 15-year-old girl, who was also raped. It is possible that the heinous nature of the crime had influenced the outcome of the case. The belief that condign punishment is necessary for rendering complete justice could be behind courts brushing aside discrepancies or improvements in the evidence provided by witnesses. On a fresh hearing of the appeals, the court has concluded that the accused, who were roped in as accused in this case after being found to be involved in an unrelated crime elsewhere, were innocent.

The case, in itself, holds a strong argument against the retention of the death penalty on the statute book. Had the sentence against these six been carried out, the truth would have been buried with them. In recent years, the Supreme Court has been limiting the scope for resorting to the death penalty by a series of judgments that recognise the rights of death row convicts. A few years ago it ruled that review petitions in cases of death sentence should be heard in open court. In a country notorious for “the law’s delay”, it is inevitable that the long wait on death row, either for a review hearing or for the disposal of a mercy petition, could ultimately redound to the benefit of the convicts and their death sentences altered to life terms. In a system that many say favours the affluent and the influential, the likelihood of institutional bias against the socially and economically weak is quite high. Also, there is a perception that the way the “rarest of rare cases” norm is applied by various courts is arbitrary and inconsistent. The clamour for justice often becomes a call for the maximum sentence. In that sense, every death sentence throws up a moral dilemma on whether the truth has been sufficiently established. The only way out of this is the abolition of the death penalty altogether.

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