India’s broken criminal justice system cannot support the death penaltyhttps://indianexpress.com/article/opinion/columns/supreme-court-death-sentence-order-reversed-nashik-5621517/

India’s broken criminal justice system cannot support the death penalty

Three courts found six innocent men guilty of a heinous crime, brought them to the brink of execution. In this story, even our highest court upheld their guilt and death sentence and such a grave error must trigger the moral honesty to accept that we are playing with fire by keeping the death penalty in such a system.

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Our criminal justice system has a very low rate of conviction. And at the same time, nearly 75 per cent of our prison population is made of undertrials who spend long periods in prison without ever being found guilty. (Illustration by C R Sasikumar)

After having spent most of their 16 years of incarceration on death row, Ankush Shinde, Rajya Shinde, Raju Shinde, Ambadas Shinde, Bapu Shinde and Surya were acquitted and ordered to be released from Yerawada Central Prison by the Supreme Court on March 5. This tragedy was made possible by the fact that three courts — the Nashik Sessions Court, the Bombay High Court and the Supreme Court — between June 2003 and April 2009 had found them guilty and sentenced them to death. However, now in 2019, the SC has taken a closer look at the evidence and set them free while ordering an inquiry against the investigating officer for framing the six men.

This indescribable tragedy that brought six innocent men to the brink of execution must leave a deep scar on our collective humanity. It must force deep introspection on the misplaced righteousness we adopt in responding to crime and punishment and at the very least, must lead to the sobering realisation that our criminal justice system is beset with the possibility of error. In this story, even our highest court upheld their guilt and death sentence and such a grave error must trigger the moral honesty to accept that we are playing with fire by keeping the death penalty in such a system.

Three courts in the judicial hierarchy, including the SC, found the six men guilty of murdering Trambak Satote, his daughter Savita, his sons Sandeep and Shrikant and his nephew Bharat More on the intervening night of June 5-6, 2003. While the Nashik Sessions Court in June 2006 sentenced all six to death, the Bombay High Court took the view that Ambadas Shinde, Bapu Shinde and Surya did not deserve death because they had not raped Savita. However, the SC, speaking through Justices Arijit Pasayat and Mukundakam Sharma in April 2009, disagreed with the high court and sentenced all six men to death.

The story that all these three courts held to be true was that these six men attacked Trambak Satote, his wife Vimalabai, their four children (three sons and a daughter), and their nephew and murdered five of them. Vimalabai and her son Manoj survived the attack and went on to identify all these six men except one by picking them out of a police line-up (TIP/Test Identification Parade). They also later identified them in court and these eyewitness testimonies lie at the heart of finding the Shindes and Surya guilty. Eyewitness testimony in cases like this is akin to gold dust and is considered to be strong evidence in trials.

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But what happened with the eyewitness testimonies in this case that the SC acquitted the six men last week? Did Vimalabai and Manoj lie that they saw these men that night? Were they made to give false testimony? The bench comprising Justices A K Sikri, Abdul Nazeer and M R Shah has now come to the conclusion that the investigating authorities deliberately framed these men. And the key to this was the finding that Vimalabai, two days after the incident, identified four completely different men from among photographs of those with a criminal record shown to her by the police. However, these six men (the Shindes and Surya) were identified by Vimalabai and Manoj much later. As a result, 10 different men ended up being identified between the two eyewitnesses but it was always the case of the investigators and witnesses that there were only six men that night. And therefore, the identification and eyewitness testimony was clearly fabricated.

A lot of evidence at the crime scene that could have been subject to forensic analysis was either not sent to the labs or their results were not produced as evidence. None of this will surprise those who work closely with the criminal justice system. But this moment is about once again hoping that all of us realise that we have a criminal justice system that is so broken that it can bring innocent people extremely close to execution. If this is the manner in which the criminal justice system handles imposition of the death penalty, it must surely indicate the depth of the crisis. Equally alarming is the fact that the SC had seen this very evidence in 2009 and still went ahead with the conviction and the death sentence. It points to a much larger malaise within the criminal justice system — the principle of “innocent until proven guilty” is almost turned on its head in practice. The constant rhetoric that seeks to strengthen victims’ rights by taking away crucial rights of the accused has found great favour among judges, politicians, the media and the general public. No criminal justice system can maintain its integrity if the rights of the accused are determined and influenced by the brutality of the crime. We cannot secure the rights of victims by sacrificing the rights of the accused. That ill-informed path will only lead to more and more wrongful convictions, with the real perpetrators never being held responsible.

Our criminal justice system has a very low rate of conviction. And at the same time, nearly 75 per cent of our prison population is made of undertrials who spend long periods in prison without ever being found guilty. There is tremendous pressure on the police and prosecutors to produce convictions using methods that are colonial relics. In this context, there are perverse incentives to manufacture torture-based evidence, plant evidence, engage in prosecutorial misconduct and to routinely suppress exculpatory evidence. Wrongful prosecutions and convictions in our country are far more rampant than we imagine or acknowledge. Manisha Sethi’s powerful analysis of terror trials in Kafkaland and the excellent work by the Quill Foundation in the context of terror prosecutions is stark evidence of that.

The suffering inflicted on the Shindes and Surya shows us the perils of having the death penalty in the midst of such an error-prone criminal justice system. Irrespective of our philosophical or political commitments on the death penalty, this story must have massive ramifications for our social conscience. If three courts, including the apex court, could not spot the illegalities perpetrated by the investigating authorities in framing six innocent men, then there is no reasonable way to hold the position that we have a criminal justice system capable of having the death penalty.

Human suffering has become so normalised that the suffering we inflicted on Ankush Shinde, Rajya Shinde, Raju Shinde, Ambadas Shinde, Bapu Shinde and Surya will soon be in danger of being forgotten. Whatever else we might make of it, we certainly cannot think that it was the systemic checks that prevented their execution. Those familiar with the story will tell you the sheer coincidences that led to a committed prison researcher bringing their story out of Yerawada Prison in 2008, her finding excellent lawyers to lead the battle in court, fortunate changes in law that allowed their innocence to be re-agitated, and the case finally landing up before a bench that was not swayed by the offence. These circumstances don’t come together too often and it is precisely this dependence on chance in our criminal justice system that makes the use of the death penalty a ticking bomb.

This article first appeared in the March 12, 2019 print edition under the title ‘The burden of innocence’