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Report No. 262

C. Systemic and Structural Concerns with the Criminal Justice Process: Implications for the Death Penalty

5.3.1 Apart from concerns regarding the excessive and arbitrary use of the death penalty, data indicates that there exists disparity in the imposition of the death penalty, reflecting systemic and structural disadvantages, particularly of the socially and economically marginalized.

(i) Assessing Capacity to Reform

5.3.2 The Bachan Singh formulation requires judges to impose the death penalty only when the alternative of life is "unquestionably foreclosed." Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209. To make this determination, judges are required to consider whether the offender is capable of reform. Crucially, Bachan Singh endorsed the standard that the prosecution should prove by leading evidence that the offender cannot be reformed.608

608 See discussion above.

5.3.3 As the Supreme Court has subsequently noticed, this injunction to determine the possibility of reformation through leading evidence rather than hunches, has rarely been followed. Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498. More often than not, judges state, rather than evaluate, whether a person is likely to be a continuing menace to society; whether he is capable of reform and therefore, whether sparing his life is "unquestionably foreclosed."610

How do judges predict the offender's future predilections, especially (though not only) when they find in otherwise similar fact situations that in the one case the offender was not likely to be a menace to society, and in another, that he was? Comparative experiences, and crucially our own history cautions us about making such assessments.

610 See discussion above.

5.3.4 A number of studies, now severely discredited, have attempted determined whether certain people or groups can be characterized and categorized according to their criminal propensities or other tendencies. Studies of this sort tried to show, for example, that whites had larger brains than "inferior" races, like blacks, and thus were more intelligent. However, Stephen Jay Gould, who studied a host of "scientific" efforts to relate intelligence to brain size over the last 150 years, has proved these attempts false.611

In some of the works he studied, the methods used were seriously flawed. In others, existing prejudices of these "scientists" influenced how they chose and analysed their data. But crucially, Gould found a tendency in these studies to convert abstract prejudice.- here, that blacks are inferio.- into "facts", just so one can "make the divisions and distinctions among people that our cultural and political systems dictate."612

611 Stephen Jay Gould, The Mismeasure of Man, 56 (1996).

612 Stephen Jay Gould, The Mismeasure of Man, 56 (1996).

5.3.5 Indian history echoes similar problematic attempts at classifying people. In 1871, for example, the British passed the "Criminal Tribes Act". The motivating notion behind the Act "was to regard all members of these tribes as potentially criminal."613 The Act listed about 150 tribes by name.614 If a person was born into one of these tribes, that person would by birth and by definition be criminal.

While introducing the Bill that became the 1871 Act, T. V. Stephens, a Member of Britain's Law and Order Commission, observed that such tribes "were criminals from times immemorial. [They are] destined by the usages of caste to commit crime and [their] descendants will be offenders against law until the whole tribe is exterminated or accounted for in the manner of the Thugs I may almost say his religion [is] to commit crime."615 Such persons were thus assumed to be prone to committing crimes by habit, addiction, or even religious diktats. 616

613 Ministry of Education and Social Welfare, Gazetteer of India, (4)1978, New Delhi.

614 The Resist Initiative International, Branded 'Born' Criminals: Racial Abuses against Detained and Nomadic Tribes in India, Information for the consideration of the Committee on Elimination of Racial Discrimination in Reviewing India's Fifteenth to Nineteenth Periodic Reports, 3 (Feb 2007), available at
http://www2.ohchr.org/english/bodies/cerd/docs/ngos/resist.pdf, visited on 23.08.2015.

615 Dilip D'Souza, Declared Criminals at Birth. India's "Denotified Tribes", (2001), available at:
http://www.manushiindia.org/pdfs_issues/PDF%20file%20123/4.%20Declared%20Criminal%20at%20Birth.pdf, visited on 23.08.2015.

616 Dilip D'Souza, Declared Criminals at Birth. India's "Denotified Tribes", (2001), available at:
http://www.manushiindia.org/pdfs_issues/PDF%20file%20123/4.%20Declared%20Criminal%20at%20Birth.pdf, visited on 23.08.2015.

5.3.6 Assuming criminality based on one's inherent, genetic or congenital attributes often find their way into law and the process of justice, including the death penalty. So much so, that in 1996, Texas had to amend its Code of Criminal Procedure to state that the Prosecution in capital punishment cases may not offer evidence "to establish that the race or ethnicity of the defendant makes it likely that the defendant will engage in future criminal conduct."617 That is, as late as 1996, the law in Texas had to expressly prohibit the tendency to assume that some people have an inherent, genetic predisposition to crime because of their race or ethnicity.

The American Bar Association has also urged that the law do away with the very notion of "future dangerousness".618 They noted that this idea "often turns on unreliable scientific evidence."619 Put another way, the American Bar Association recognized that there is no scientific evidence for such a thing as an inherently criminal bent of mind.

617 Roger Hood And Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, 361 (2015).

618 Roger Hood And Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, 361 (2015); American Bar Association, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report (September 2013), available at
http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/tx_complete_report.authcheckdam.pdf, visited on 23.08.2015.

619 Roger Hood And Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, 361 (2015).

5.3.7 Similar concerns with assuming dangerousness arise in India as well. To again take the example of the Criminal Tribes Act, though this law was repealed in 1952 (and the tribes were "de-notified") it was however replaced by Habitual offenders Acts in several states. Persons belonging to de-notified tribes continue to be presumed (in practice, if not in law) to be criminal, and genetically predisposed to crime.620 The attitude of the Criminal Justice functionaries regarding de-notified tribes can be summed up from this, amongst many other similar, news reports:

According to Ashti's police chief, S.S. Gaikawad, a quarter of local thefts are carried out by Pardhis. His deputy reckons half of Pardhi men are criminal. Mr Gaikawad attributes high rates of criminality to poverty, but believes culture also plays a part: 'The more criminal cases against a Pardhi man, the higher his status, and therefore the better his marriage prospects are.621

620 International Convention on the Elimination of all forms of Racial Discrimination, CERD/C/IND/CO/19, 3 (Seventieth Session, March 2007).

621 The Economist, If they were crooks, wouldn't they be richer?, April 22 2010.

5.3.8 Assumptions like these rest on no scientific evidence of any kind. And yet Habitual offenders Acts remain in place across India. Further, police manuals till date mandate the opening of history sheets for registered ex-notified tribe members, "on account of their active criminality."622 The "taint of inherent criminality" continues to shape the interaction of members of de-notified tribes with the state apparatus, including the police. Infact, the Delhi High Court in Naz Foundation v. State (N.C.T. of Delhi), 2010 Cri.L.J. 94 (Del) also noted how the taint of criminality still continues for communities such as the Hijra community. Naz Foundation v. State (N.C.T. of Delhi), 2010 Cri.L.J. 94 (Del), at para 50.

622 Mrinal Satish, "Bad Characters, History Sheeters, Budding Goondas And Rowdies": Police Surveillance Files And Intelligence Databases In India," 23 Nat'l. L. Sch. India Rev. 133, 138 (2011-12).

5.3.9 The issue to consider is how members of such tribes, who are often viewed in such a prejudicial manner, will be treated within the criminal justice system, especially when the question of their "future dangerousness" or "possibility of reform" is in issue. To what extent, if any, do socially constructed and imbibed prejudices against the person's identity play a role in such assessment? While it is difficult to be sure of this, the larger context of adjudication, where individual judges often make legal assessments based on such social constructs is indicative of an answer.

Assumptions relating to caste have often been made, and used during trials for various offences in different ways, which keeps alive the concern that otherwise irrelevant factors such as a person's class or caste may impact the person's interaction with the criminal justice system. See e.g., Vellapandi v. State, 2001 Cri. L.J. 2772 (Mad), at para 15; Dayaram v. State of M.P., 1992 Cri. L.J. 3154 (M.P.). It is in this larger context of persistent social prejudice against certain groups, that so final and irrevocable a punishment as the death penalty operates, which may influence not only the police apparatus, the prosecution machinery, witnesses and the public, but also the judges themselves.

5.3.10 These are not merely theoretical suppositions. The reality of the discriminatory impact of caste, class, and religion is exhibited by data presented by the Death Penalty Research Project of National Law University, Delhi at the Commission's National Consultation. The data indicates that out of 373 prisoners on death row in the country, over 75% belong to backward classes and religious minorities. 93.5% of those sentenced to death for terror offences are religious minorities or Dalits.626 Hence, it appears that there are plenty of reasons, as well as empirical evidence to fear the disparate and maybe even discriminatory impact of the death penalty.

626 Presentation made by the Death Penalty Research Project at the National Consultation on July 11, 2015.



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