INDIA – By Executive Order, Not Parliament, India introduces death penalty for rape of girls below 12…

India has  sadly just introduced the death penalty for rape of a minor. This was not done after Parliament debates and approves a law – but rather by way of an Executive Order, which was approved by Cabinet on Saturday(21/4/2018), and subsequently by the President…This is also Election year, and the new ordinance/order also is gender biased…

 

With regard to rape or gang rape of a girl below the age of 12, the cabinet said the accused would be sentenced to 20 years of imprisonment, imprisonment for life or death.

Death penalty for rape of minors: President approves ordinance

TNN | Apr 23, 2018, 04:05 IST

 NEW DELHI: President Ram Nath Kovind on Sunday approved the ordinance to strengthen the Protection of Children from Sexual Offences (POCSO) Act.

In the wake of an increase in incidents of rape of minors, the cabinet had on Saturday approved a number of measures to amend the POCSO Act.The ordinance seeks death penalty for rapists of girls below 12 years of age and stringent punishment for perpetrators of rape particularly of girls below 16 years.
The minimum punishment in case of rape of women has been increased from rigorous imprisonment of 7 to 10 years, extendable to life imprisonment. In case of rape of a girl under 16 years, minimum punishment has been increased from 10 to 20 years, extendable to life imprisonment.

The punishment for gang rape of a girl under 16 years will be imprisonment for the rest of the life of the convict.With regard to rape or gang rape of a girl below the age of 12, the cabinet said the accused would be sentenced to 20 years of imprisonment, imprisonment for life or death.The cabinet also decided to put in place several measures for speedy probe and trial of rape cases. It has also provided for a six month time limit for disposal of appeals in rape cases.- Times of India, 23/4/2018

India’s death penalty for rapists of young girls could push them to kill

With the majority of rapes committed by someone known to the victim, the new law could drive offenders to murder to avoid detection

A man walks past a graffiti depicting a message in protest against rape, in Jammu, on 22 April
A man walks past graffiti protesting against rape, in Jammu. Reporting the crime in India’s patriarchal family structure is often fraught with victim shaming and further alienation. Photograph: Mukesh Gupta/Reuters

On Saturday India’s government approved the death penalty for convicted rapists of girls under the age of 12, amid a groundswell of public outrage following the gang-rape and murder of an eight-year-old Muslim girl in Jammu and Kashmir state.

The shocking case involved a girl from the Bakarwal nomadic tribe, who was out grazing her horses when she was abducted, drugged and murdered after a week of torture and repeated rape. It led to a nationwide outcry for swifter justice.

However, the hastily issued executive order is facing criticism from activists and politicians, who say the death penalty, usually meted out for severe crimes in India, will not be a deterrent to child rapists without an overhaul of the criminal justice system.

“I am afraid this [executive order] has very little credibility because what is required is certainty of punishment,” the leader of Communist Party of India (Marxist), Brinda Karat, told reporters.

According to the National Crime Records Bureau data from 2016, in 94.6% of cases, the perpetrator is known to the victim – usually a brother, father or someone from the family’s social circle. Reporting rape in India’s patriarchal family structure is often fraught with victim shaming and further alienation.

Child rights activists fear the introduction of the death penalty will make families more likely to cover up sexual crimes, and that rapists might kill their victims to avoid detection.

Critics are also concerned that the order, which was approved by Prime Minister Narendra Modi’s cabinet on Saturday, makes no mention of boys. In a country where male children often grow up in an atmosphere that discourages them from showing vulnerability, experts say such a discriminatory legal provision will fail boys who have been sexually assaulted.

Unlike the current Protection of Children from Sexual Offences Act (Pocso) 2012, which is gender-neutral and defines any person under 18 as a child, the new ordinance will stop boys who have been sexually abused from seeking the same justice accorded to a girl of their age, says gay rights activist Harish Iyer.

“I principally stand against the death penalty. This discriminatory legislation implies what boys are taught growing up – that they have to be the protector and not the protected. Children are vulnerable to sexual assault, irrespective of gender,” Iyer said.

A nationwide survey of crimes against children conducted by the ministry of women and child development in 2007 found that half of India’s children had been sexually abused.

Iyer said the new executive order was a shortcut for an overhaul of a criminal justice system that often discriminates against the poor. “This is sexism of a different nature, it favours one gender. What about protection of intersex children? Unless the crime is female foeticide, which is specifically gender-oriented, this is a shortcut for real measures.”

A man beats an effigy of one of the rapists at a protest against three rapes of girls, in Ahmedabad, India.
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A man beats an effigy of one of the rapists at a protest against three rapes of girls, in Ahmedabad, India. Photograph: Amit Dave/Reuters

He said the government should prioritise fast-track courts, child-friendly police stations, and a national registry of sex offenders. The new law proposes stricter punishment for convicted rapists of children under 16 years of age. Its definition of the victims and proposed age limit has triggered a debate about categorising victims of the same crime.

“What’s the explanation for death penalty for ‘gang rape of children below 12 years’? The state is a man. Why else would the reproductive age of a girl be the determining factor for the kind of punishment meted out to the rapists?” journalist Kota Neelima wrote in a Facebook post.

In 2016 India recorded an alarmingly low conviction rate (18.9%) for crimes against women. In that year, of all the child rape cases that came before the courts under the Pocso, less than 3% ended in convictions.

An issue of such a grave nature should have had a public discourse with participation from civil society stakeholders. By its nature, an executive order can be announced by the president of India on recommendation from the federal cabinet and does not require consultation.

After the gang rape of Jyoti Singh in Delhi in 2012, India introduced tougher rape laws and launched fast-track courts, but the measures have not deterred violent sexual crimes.

In addition, homelessness and poverty increase the vulnerability of children to sexual predators as parents have to leave them on their own to go to work, making them easy targets.

In an election year, the ruling Bharatiya Janata Party (BJP) wants to be seen as proactive in taking strong steps to make India safer for women. However, it is implementation, the real challenge in India, that will determine its true intention.- The Guardian, 24/4/2018

INDIA – Hoshiarpur boy’s two killers to be hanged on October 25

Hoshiarpur boy’s two killers to be hanged on October 25

  • Harpreet Kaur, Hindustan Times, Hoshiarpur
  • |

  • Updated: Oct 03, 2016 22:45 IST

The parents of Hoshiarpur boy Abhi Verma, who was kidnapped and murdered for ransom at 16 in February 2005, have welcomed the orders to execute convicts Vikram Walia and Jasvir Singh in the wake of the President’s rejecting their mercy petition.

Ravi Verma and his wife, Anita, are relieved that a long legal battle has come good. “Justice will prevail after almost 12 years,” said Ravi Verma. “The execution of the convicts will not bring our child back but it will deter those who play with the lives of others.”

Walia and Jasvir Singh will be hanged in Patiala jail at 9am on October 25. The two along with Jasvir’s wife, Sonia, had kidnapped Abhi, a Class 9 student of DAV School here, and killed him with an overdose of anaesthesia. Walia and Jasvir Singh were then in their early twenties. Walia lived in Model Town here and Jasvir at his aunt’s in Milap Nagar, the house where they kept the boy.

Mastermind Walia was known to goldsmith Ravi Verma. After kidnapping Verma’s son, he even went to his house with Jasvir, and offered fake sympathies. Even after killing the boy, they continued to demand `50 lakh ransom from his family.

Sonia, Abhi’s former tutor, was involved in everything from the kidnapping and intoxication of the boy to the destruction of evidence. They dumped the body in a field in Jalandhar district, from where it was recovered on the disclosure statement of Jasvir.

On December 21, 2006, the district and sessions judge gave death penalty to all three. On May 30, 2008, the high court upheld the sentence. In January 2010, the Supreme Court commuted only Sonia’s sentence to life imprisonment.

To prolong the trial, Walia and Jasvir challenged capital punishment awarded under Section 364-A (kidnapping for ransom) of the Indian Penal Code (IPC) but, in August 2015, a three-member Supreme Court bench headed by justice TS Thakur dismissed that appeal. Jasvir and Sonia sought conjugal rights from the court to bear a child but that, too, was declined. Walia and Jasvir filed a mercy petition with the President, which he turned down this August.

Issuing death warrants, the Hoshiarpur district and sessions judge has ordered the Patiala Central Jail superintendent to make necessary arrangements for the execution. His legal aid, Maninder Pal Singh, said that the convicts had exhausted all their legal means and their hanging was imminent. – Hindustan Times, 3/10/2016

India :- The bias of death penalty against the economically vulnerable?

* What is happening in India, is most likely happening in other countries as well..

Why is this important? A prisoner’s economic status and level of education directly affects their ability to effectively participate in the criminal justice system and claim their fair trial rights.

Seven in ten prisoners said their lawyers did not discuss case details with them. Nearly 77 per cent said they never met their trial court lawyers outside court, and the interaction in court was perfunctory.

The bias of death penalty against the economically vulnerable

The death penalty seems to perpetuate a “systemic marginalization” against prisoners from vulnerable and marginalized backgrounds.

Written by Shailesh Rai | New Delhi | Updated: May 24, 2016 5:42 pm

death penalty, death penalty India, criminals India, prisoners, economically weak prisoners, courts, Indian prisoners, Indian lawyers, Indian legal system A prisoner’s economic status and level of education directly affects their ability to effectively participate in the criminal justice system and claim their fair trial rights.“One of the more difficult tasks for me as President was to decide on the issue of confirming capital punishment awarded by courts,” former President APJ Abdul Kalam once wrote. “I thought I should get all these cases examined, to my surprise, almost all cases which were pending had a social and economic bias.”

Last week, the Death Penalty Research Project at National Law University, Delhi released a seminal report on the death penalty. For the first time, researchers tried to interview all prisoners under sentence of death and their families, to understand who gets the death penalty and how, and what it is like to live under sentence of death in India.

What they found, in interviews with hundreds of prisoners and their families over two and a half years, was a system plagued by fundamental flaws.Whose structural foundations “render the systematic erosion of basic protections inevitable”, and where the death penalty seemed to perpetuate a “systemic marginalization” against prisoners from vulnerable and marginalized backgrounds.

Media debates in India on the death penalty almost always erupt around an imminent execution, and focus on whether the punishment is morally justified. However most prisoners sentenced to death in India are not eventually executed. (Less than 5 per cent of those sentenced to death by trial courts during the study after higher courts ruled on their appeals.) Yet issues of how prisoners on death row are treated by the criminal justice system are almost never discussed.

The NLU report emphasizes that its findings do not necessarily suggest that there is any direct discrimination at work – which means that state authorities do not intentionally discriminate against poor or less-educated prisoners. But the disparate impacts that it identifies do raise an important question: is there a degree of indirect discrimination at work, which worsens the impact of the denial of fair trial rights for prisoners from disadvantaged backgrounds?

Indirect discrimination occurs when a seemingly neutral practice or rule impacts particular groups disproportionately, even if it is not intentionally directed at that group.

Almost 75 per cent of the prisoners interviewed were “economically vulnerable”, a category the report’s authors defined using occupation and landholding. There is no direct equivalent government statistic, but about 21 per cent of people in India live below the international poverty line of $1.90 a day, and 58 per cent on below $3.10 a day.

Over half the prisoners worked in the organized sector, their occupations reading like a directory of unstable jobs: auto driver, brick kiln labourer, street vendor, manual scavenger, domestic worker, construction worker.

About 19 per cent of those on death row had attended only primary school (including those who started but dropped out). The comparative national figure is about 32 per cent (2011 census). Many prisoners were disadvantaged on both counts; nine out of ten who had never gone to school were also economically vulnerable, for example.

Why is this important? A prisoner’s economic status and level of education directly affects their ability to effectively participate in the criminal justice system and claim their fair trial rights.

Take something as basic as the right to be present at one’s own trial -which is an integral part of the right to defend oneself.Only one in four prisoners interviewed said they had attended all their hearings. Some prisoners said the police would be taken to the court premises by the police and then confined to a court lock-up without being produced in the courtroom.

A prisoner named Muhafiz told researchers that he had only been present in court during the depositions of two witnesses, and had been kept in the lock-up for the rest of his trial. He had never been to school, and said that even his limited presence in court would have been more meaningful if he had been educated.

Even when prisoners were present in court, the report says, “the very architecture of several trial courts often prevents any real chance of the accused participating in their own trial.” Accused persons were usually allowed at the back of the courtroom while proceedings between the judge and lawyers took place in front, out of earshot.

Everyone charged with a crime has the right under international human rights law to an interpreter if they do not understand the language used in court, and to translated documents. But this requirement is rarely met. Over half of the prisoners interviewed said they did not understand the proceedings at all – either because of the court architecture or the language used (often English).

Abed, a prisoner who only understood simple English words, said he could not comprehend large parts of his trial, which lasted for over 12 years. He understood the trial court decision to sentence him to death only after his fellow inmates explained it to him. Another prisoner who knew English told researchers he could not understand the proceedings in his trial as they were conducted in a different state language. The trial court rejected his requests for a translator, and went on to sentence him to death.

Part of an accused’s right to a fair hearing is the right to challenge evidence produced against them. In India, trial courts can question the accused directly at any stage, and the Supreme Court has ruled that accused persons must be questioned separately about every material circumstance to be used against them, in a form they can understand.

The study found that these provisions were routinely violated. Over 60 per cent of the prisoners interviewed said they were only asked to give yes/no responses to a string of questions in their trials, with no meaningful opportunity to explain themselves. A prisoner named Hemrajsaid that the judge only asked him one question – whether he had committed the crime. When Hemraj tried to respond to the evidence put forward by the prosecution, the sessions judge didn’t let him speak, and told him that “the lawyer would handle all that.”

The lawyers typically don’t. Seven in ten prisoners said their lawyers did not discuss case details with them. Nearly 77 per cent said they never met their trial court lawyers outside court, and the interaction in court was perfunctory. (Many of the prisoners chose to hire private lawyers at the trial and High Court, despite their economic vulnerability, because of their fear that the underpaid legal aid lawyers would not be competent or interested.)

And on it goes. In higher courts, prisoners had even less information about their cases, often finding out about developments only through prison authorities or television and newspaper reports. As the report puts it, “There is widespread alienation…among prisoners sentenced to death with an intense sentiment of systemic injustice.”

It isn’t just death row prisoners who face these kinds of violations, of course. (And India isn’t the only country with these problems: Amnesty International has also documented how death row prisoners in countries such as Indonesia face similar flagrant fair trial rights violations.) But given the irreversible nature of the death penalty, it is particularly important that fair trial rights are scrupulously followed in these cases. International human rights bodies agree that every death sentence imposed at the end of an unfair trial violates the right to life. The only way to end this injustice, clearly, is to impose an immediate moratorium on the use of the death penalty, as a first step towards abolition.

On the issue of indirect discrimination, human rights treaty bodies such as the Committee on the Elimination of Racial Discrimination have said that it goes “beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect.”

Indirect discrimination isn’t always easy to prove, and can often only be demonstrated circumstantially. But reliable statistics can go some way in showing that it exists where policies and practices appear to be neutral. UN treaty bodies accept statistics as proof of discrimination, as do many European countries. Combined with the knowledge about the broader societal context prejudices, statistics can make out at least a prima facie case of discrimination.

Indian criminal justice authorities follow several practices which hurt poor or otherwise marginalized prisoners much more than others.What needs investigation is whether these practices are just the offshoots of social and economic inequalities, or whether they have become a form of institutionalized indirect discrimination.

Just last year, the Law Commission concluded in a report on the death penalty, “The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.” The NLU study sets out in stark and dismal detail the evidence for these claims. The death penalty is a lethal lottery in India, and the dice are loaded against some.

(Names of prisoners changed)

Shailesh Rai is Senior Policy Advisor,  Amnesty International India. Views expressed by the author are personal.

– See more at: http://indianexpress.com/article/blogs/the-bias-of-the-death-penalty-against-the-economically-vulnerable/#sthash.uUsBigjG.dpuf