Lots of data, lots of misdirection: Why the NLU death row report is flawed

The National Law University Death Penalty Research Project gives us lots of data we didn't have earlier, but it is seriously misdirected. Any conclusions drawn on the basis of this data will be equally seriously flawed. In fact, no conclusion should be drawn on the need for (or abolition of) the death sentence for the research does not provide any such evidence.

Any research project will give us good or bad results based on the questions we ask: If the questions to which we are seeking answers are limited, the answers will be biased. This is the case with the NLU's report. It asked itself a very limited question, and gathered data by looking for facts to support its underlying predilections — and, surprise, surprise, got it.

The NLU researchers seem to have asked themselves two basic questions: Is the administration of justice fair to those facing a potential death sentence, or those on death row? Also, is the death penalty worth keeping, given that it is about taking a human life? Not surprisingly, it has concluded that the system — long trials, long pendency of mercy petitions etc — are unfair to undertrials and convicts.

Representational image. AFP

Representational image. AFP

But isn't this the case with the whole of the justice system? Is it fair to anybody beyond the rich and powerful? How many of us even in the middle class can get "justice" in this system, assuming we are unfortunate enough to be caught in its pincers? Consider how many thousands spend years in jail for petty crimes like robbery just because they can't afford bail. If we conclude that the police-legal-judicial system is fundamentally bad at delivering justice to 99 percent of Indians, why focus on the death penalty alone?

In fact, large parts of the NLU data go against the stance of the "abolish death sentence" position. The politically loaded conclusion — that the poor and underprivileged are over-represented in death row — is even more flawed, as I will show using the NLU's own data. But the headlines on Saturday were all about this. 'Most on death row poor, from backward caste groups, minorities' (The Indian Express); or The Times of India's subhead: 'Why the death penalty is 'privilege' of the poor'.

There are 385 people on death row, according to stats provided by NLU's research. Is 385 in a population of 1,250,000,000 too much or two little? You do the math. It is negligible. The project has focused on something that is too minuscule to matter in the overall cause of justice. A hundred other issues need to be addressed before we look at abolishing the death penalty based on NLU's data.

Then take the trope of bias against the poor.

The death row numbers show that SC/STs form 24.5 percent of this figure, OBCs 34.6 percent, others (possibly upper castes) 24 percent and minorities (20.7 percent). Look at the numbers closely: Isn't is this almost a mirror image of India's demographics, give or take a few percentage points? If Hindus are under 80 percent of the population according to the 2011 census, more than 20 percent are minorities. So where's the skew or anti-minority bias? SC/STs form around 23-24 percent of the population. So where are they over-represented on death row? Non-OBC/non-SC-STs castes — a broad proxy for the less disadvantaged castes — are, if anything over-represented, for it is no one's case that upper castes are 24 percent of the population.

In short, the death row demographics prove that no particular group is specifically discriminated against - at least as seen from NLU data. OBCs and minorities may be over-counted since anyone claiming to be both — OBC and minority — has been added to both groups. The percentage count taking all groups is nearly 104 percent of the death row population, not 100 percent.

But the most serious problem with the NLU data is what it does not include: The lack of any data on the real victims. The research focuses on the delays and uncertainties in death penalty cases, but not the trauma of the victims and their families. In the Rajiv Gandhi case, we are told about the long periods spent in jail by three death row cases (whose sentences were commuted to life) but not about the 17 people killed by LTTE's suicide squad apart from Rajiv Gandhi. Is the trauma of the victims and their families any less than that of the criminals — the victimisers?

If length of trials — one death row convict, Navinder Singh, spent 25 years in jail and had his sentence finally commuted due to delays in deciding his mercy petition — is treated as traumatic for convicts, how much more must this agonising wait be seen as traumatising the victims and their families? If Navinder Singh spent 25 years in jail awaiting the noose, didn't his victims too suffer the same uncertainties? What if his conviction was finally overturned, and the victims got no closure? Wouldn't this be double trauma?

The NLU project makes a case for speedier justice, but only for those less deserving of compassion than those truly deserving of it — the victims and their immediate families.

The good part about the NLU project is that we now have data, but this data is flawed from the point of view of the administration of justice, for justice is not only about being fair to the accused and convicted, but to those who suffered at their hands.

The only conclusions that can be drawn are these:

One, the trial and mercy processes are too long to deliver justice to anyone. But this applies even more to non-death row cases than to death row cases.
Two, there is a case for improving jail and bail conditions for all — and not just death row inmates.
Three, there is a stronger case for ensuring that death sentences are not awarded arbitrarily, with trial courts often making no distinction between serious and extraordinary crimes. There is thus strong reason for the Supreme Court to decide what constitutes "rarest or rare" crimes that deserve a death sentence. Right now anything from a simple murder driven by passion to terrorism can get the same treatment.

The real tragedy is that the anecdotal stories of death row cases and their human stories of suffering will be used to argue in favour of abandoning the death penalty altogether. The point is, to arrive at this conclusion, you don't need a voluminous report. You can simply decide on  moral grounds that the state shall not take any life, whatever the nature of the crime perpetrated.

But try telling that to the victims of heinous crimes.

The truth is justice is not being done to them, when retribution is also an important human emotion that goes to the very core of the idea of justice being seen to be done.

The NLU has got data — but its report is not quite about making the judicial system fairer to all. It is about making justice fairer to the likely criminal.

Published Date: May 10, 2016 07:57 am | Updated Date: May 10, 2016 07:59 am

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