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There is class bias in awarding death penalty -Harsh Mander
-The Hindustan Times


Last winter, two men were hanged to death in India's jails, indicted for crimes of terror. On August 8, another man, Maganlal Barela- a little-known tribal cultivator, charged with killing his five little daughters - was scheduled to hang in the Jabalpur Central Jail.

Human rights lawyers chanced to read of his hanging in an online news item the evening before his execution was fixed, and rushed to meet Supreme Court Chief Justice P Sathasivam. The chief justice agreed to hear them that evening and concurred that even after the president rejects the mercy petition of a death row convict, there is one more legal remedy: to challenge this rejection in the Supreme Court.

Barela was too poor to afford a lawyer in the higher courts but for the team of committed human rights lawyers - Yug Chaudhary, Siddhartha and Colin Gonsalves - and the stay granted by Justice Sathasivam, he would have been sent to the gallows.

There are many reasons I oppose his death penalty. The gravity of his crime is not one of them, nor the merits of the judgment holding him guilty. My consideration is the class bias of capital punishment. It can hardly be a coincidence that the majority of the 414 people who faced the gallows in India as of the end of 2012 are impoverished, dependent at best on legal aid lawyers.

I recently visited Barela's family living on the outskirts of a tribal Barela hamlet outside Kaneria village in Sehore district of Madhya Pradesh. Their crumbling home, the sickly pallor of their children's skin and hair, and their gaunt frames and tired faces testify to lives of unrelenting struggle and want.

Barela's brothers and two wives said that the only months in which food is secure are those that follow the occasional good monsoon, when they live on what they grow on their acre of dry-land. At other times, they await uncertain daily-wage employment from the forest department, or gather firewood in the forests and sell them.

After the crime, Barela's brothers pooled Rs. 5,000 and hired a local lawyer. Once he was convicted in the trial court, they had no further idea about the progress of the case, until they abruptly received notice of his hanging.

Barela was represented by legal aid lawyers who never met them. The Supreme Court refused to even admit his petition - let alone hear it on merits - with a single line order. I am convinced that his fate could have been different if he was represented by a high-profile lawyer.

Just the few hours we spent in the village threw up many possible arguments which could have been made, if not for his innocence, at least to mitigate his inclusion in the ‘rarest of the rare' cases meriting the highest penalty of death.

There was, first, his manifest abject poverty. Also, not just his wives and brothers, but other villagers testified to his affable nature, the absence of any history of violence and crime, and that he loved his daughters dearly. Villagers said that his behaviour changed dramatically four months before the grisly offence.

He suddenly became withdrawn and quiet, and would wander alone for hours in the forests. Villagers explained this as black magic. A more convincing explanation could be of mental illness, perhaps a temporary breakdown because he could not make ends meet.

He is receiving psychiatric medication in the Jabalpur prison. The threshold of insanity required if courts are to declare a person innocent is very high. But if evidence from villagers and neighbours suggesting mental illness could have been brought before the courts, could this not have persuaded the courts to at least not hang him?

Additionally, the case against Barela is based on circumstantial evidence, as there are no eye-witnesses to the crime.

In a similar case in which a man killed his children, the apex court recently awarded reprieve from capital punishment partly on grounds of the mitigating circumstances of "poverty, socio-economic, psychic compulsions and undeserved adversities in life".

In the infamous tandoor case, a Bench headed by the chief justice observed that this was not a ‘crime against society', and the appellant had no criminal antecedents. All these same arguments could equally apply to Barela's case.

If only Barela's family could have afforded effective legal representation in the trial and higher courts, it is possible that the trial court's sentence could have been less severe, and the higher courts could have come to similar conclusions about mitigating circumstances. Are we then actually hanging Barela only because of his crime of being poor?

There are also larger philosophical questions about why a society chooses to execute those who violate human and social morality. Is our motivation to prevent further crimes?

Do we credibly believe that the next time a father is driven to consider murdering his own children - in a moment of intense rage, despair or madness - he will be deterred only because of the possibility that he may be hanged to death? Barela's brother says he tried to hang himself after the killing of his daughters, and was saved only because his brother cut the rope in time.

Or is our objective in seeking capital punishment actually of retribution, to take the life of a person who outrages and violates what we cherish: in this case a murderous father?

It is evident that persons most directly violated by the crime - the mothers of the five girls who were killed- have forgiven him for what the courts have found him guilty. They recalled to us how he was an affectionate father and a kind husband, how he loved his children, and that he never raised a hand on any of them before that horrific day.

Their fields lie fallow; their older son has had to drop out of school and instead grazes cattle. "We only wish he could return home and take care of his family", his wives say.

If they can forgive him, can we not?

Harsh Mander is Director, Centre for Equity Studies