Capital punishment in South Asia (India, Pakistan and Bangladesh): a legal analysis

Despite the inexorable global trend towards abolition, India, Pakistan and Bangladesh have not embraced the abolitionist movement and still fail to accept capital punishment as a human rights issue. The application of capital punishment in the Indian subcontinent is not only a violation of international human rights law but is also contradictory to the domestic constitutional provisions that guarantee the right to life, the right to a fair trial and the prohibition of torture. This research identifies the glaring gaps in the substantive and procedural laws of these countries that lead to arbitrary application of the death penalty. Law Commissions’ reports and the case law of these countries reflect: the investigating agencies use torture to extract confession; the indigent accused facing capital charges do not get legal assistance at the state’s expense; and issues related to witnesses cause undue delay in criminal proceedings and an escape route to terrorist and the powerful from prosecution. Simultaneously, the special courts have heightened the risk of arbitrary and subjective application of capital punishment by adopting special procedures that lower fair trial standards and due process guarantees. These special procedures include special powers of arrest and detention, validity to confessions made under police custody and reversing the presumption of innocence. The thesis explains that the scope of capital punishment as enunciated in the primary sources of Islamic jurisprudence (the Quran and the Sunnah) is not only limited but is also entwined with stringent evidentiary requirements and due process guarantees. It helps to dispel the notion that sharia is an impediment to restrict the scope of the application of capital punishment in Pakistan. This dissertation explores the legal and physical problems of one third of the world’s death row prisoners who have been languishing in cells for many years under the conditions of solitary confinement in contravention to guidelines of the domestic courts and law commissions. The pain of death row in the Indian subcontinent is exacerbated due to the denial of fundamental rights to prisoners in the name of safekeeping. As part of a comprehensive approach, the research provides compelling legal grounds to strengthen the criminal justice system by focusing on the process of evidence and investigation in order to prosecute the powerful and terrorists to promote justice rather than revenge.