Rethink death penaltyhttps://indianexpress.com/article/opinion/editorials/rethink-death-penalty-supreme-court-2009-5614479/

Rethink death penalty

Supreme Court decision to recall its own order, acquit six on death row, is another reminder why it needs to go.

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The case concerns the murder of five persons and the rape of one in Jalna district, Maharashtra, for which a sessions court in Nashik convicted six individuals from a nomadic community and sentenced them to death in 2006.

The Supreme Court on Tuesday reversed the death sentence it had upheld in 2009 and acquitted six persons in a high-profile murder and rape case. The Court ruled that the investigation in the 2003 case was “not fair and honest” and criticised the conduct of the investigating agency and the prosecution. It ordered compensation to the acquitted persons who had spent 16 years in prison and asked the state government to fix responsibility on the officers responsible for lapses in the prosecution. This rare reversal of the death sentence revives fundamental questions about the death penalty.

The case concerns the murder of five persons and the rape of one in Jalna district, Maharashtra, for which a sessions court in Nashik convicted six individuals from a nomadic community and sentenced them to death in 2006. The Supreme Court upheld the convictions in 2009 — in fact, it also reversed the acquittal of three persons by the High Court, found guilty by the sessions court. However, a three-judge bench reviewed the judgment in October 2018, recalled its 2009 order and decided to hear appeals filed by the accused and the state, only to find faults with the investigation and prosecution. Studies have pointed out that the criminal justice system has a class and caste bias; data shows that the poor, Dalits, tribals receive the maximum number of death sentences in India. In high-profile cases, the prosecution is under pressure to secure maximum punishment and lower courts tend to weigh in with death sentences. Many of these death sentences are overturned by higher courts on grounds of poor quality of evidence, or improper investigation. For instance, the apex court, in 2018, commuted death sentences to life imprisonment in 11 of the 12 cases it heard. However, the systemic biases and prejudices, including the lack of resources on the part of the accused to fight extended court battles, often ensures that the miscarriage of justice, which begins at the lowest court, escapes the scrutiny of even the highest court.

Capital punishment is retributive justice and its effectiveness in curbing crime is contested. In the Indian context, there is a high possibility of its misuse given the social biases that influence police investigation and prosecution. At least one sitting Supreme Court judge has in the past called for a review of its continuance in the law books. The judgment in the Nashik case should serve as a wake-up call.