The following is an excerpt from Justice Project Pakistan’s (JPP) book, The Death Penalty in Pakistan: A Critical Review, to be launched on July 11, 2019 in Islamabad. A culmination of 10 years of JPP’s work, the book documents the many ways in which Pakistan's application of the death penalty intersects with legal, social and political realities.

It focuses on how capital punishment impacts some of the most vulnerable populations: juveniles, the mentally ill, persons with physical disabilities, low-wage migrant workers imprisoned in foreign jails and the working class.

Relying on public records for multiple JPP clients sentenced to death, nearly a decade of experience in the field, as well as extensive experience with legislation and advocacy, this book tracks the many junctures at which violations occur, from arrest to sentencing to execution.

As the Mughal Empire fell, the British took control and established the Indian subcontinent as its colony until both Pakistan and India gained independence in 1947. Most of the laws and structures currently in place in Pakistan including those related to criminal justice and the legal system date to colonial times. While the British altered the modes of carrying out death sentences and made hanging the norm,¹⁹ they also made it so that capital punishment was administered more readily and frequently. Whereas the Mughals did not have many formal prison systems, the building of new and improved prisons marked the entry of the British into the Indian subcontinent.²⁰ In her book Prisoner Voices from Death Row, Reena Mary George indicates, ‘Prisons continue to be located and structured more or less as they were in colonial times. Any change that has been made has been incorporated somewhat clumsily into the old system that basically served the triple colonial aims of order, economy and efficiency’.²¹

The first formal placing of capital punishment in the legal system, though, came when the Governor-General of the India Council enacted the Indian Penal Code in 1860.²² The law, drafted by a group of Britishers making up the Law Commission, did not attempt to integrate any traditional Indian legal systems and instead, as the historian David Skuy notes, ‘the entire codification practice represented the transplantation of English law to India, complete with lawyers and judges’.²³ Since English law at the time was not itself uniform, this was a first attempt to create such a standard body of law. The current Code of Criminal Procedure was introduced in 1898 but draws from the very first code of 1861 that followed the 1857 Indian rebellion.²⁴ Its intent was to control Indians. Some of the provisions in these laws are termed as ‘draconian or black laws’.²⁵

In fact, these codes made the death penalty the automatic punishment for murder with life imprisonment as the exception rather than vice versa.²⁶ The primary justification of the death penalty itself today stems from the time [the parts that now constitute] Pakistan was still a colony, namely ‘the belief that common people can be made to obey the law only through fear instilled by harsh punishment’.²⁷ This belief persists despite reputable empirical evidence to the contrary and influences public opinion on the death penalty to this day.

Along with increasing the number of convicts and prisons and instating harsh laws, the British increased the number and frequency of executions in the country significantly. In fact, by the 1920s, fearing that they were losing their grip on the Empire, the British executed an average of 3 people every day.²⁸ According to one scholar, Anderson, ‘capital punishment was used extensively in colonial India by the British Empire to control its colonial subjects and reinforce its sovereignty’, particularly ‘given to the lower caste and class’.²⁹ This discriminatory trend persists to this day such that a vast majority of those on death row are from marginalised communities with poor socio-economic backgrounds. Time and again, scholars indicate that executions helped ‘consolidate imperial rule and eradicate resistance against it’.³⁰ These often took the form of public spectacles to dissuade dissenters and others from rising up. One example is the blowing up of Indian soldiers by cannons for mutiny.

These public displays, in fact, sometimes drew from the harsh means of executions used by the Mughals before them. Other than these public spectacles, hangings for common crimes from murder to theft to refusal to work were also used to teach the colonised a ‘lesson’.³¹ While the actual number of executions was roughly the same in Britain and India, the difference was that these deaths were public and directly a way to assert dominance and repress insubordination to curb challenges to the British Raj. And though there are multiple cases where the British commuted capital punishment, they often did this in face of a worse punishment of transportation and indentured servitude elsewhere, believing that forcing Indians to move would severely affect their religious practices, funerary rights, and caste structures, and thereby constitute a form of social death.³² Often, the British would use the bodies of dead prisoners for research – medical or otherwise. These routine post-mortems became one of the sets of grievances that led to the Great Indian Rebellion of 1857.³³

At the same time, the British put in place numerous due process guarantees. As part of several reform movements in 1837, the Colonial Office sought to reconcile law on capital punishment in England with that in the colonies, but inconsistencies remained.³⁴ As Britain sought to prove its ‘civilizing’ mission, the push for reforms intensified, but in many ways, this did not reach the colonies they were intended to benefit and the ‘theater of execution’ continued in the Indian subcontinent.³⁵ When makeshift gallows were proved prone to botched executions, the British, under heavy criticism, set up new and improved ones. However, problems persisted: ‘the drop was often too short, and criminals were on occasion hanged weighed down with heavy fetters on their legs’.³⁶

The death penalty in England itself was inherently problematic. Seeing its rise in the industrial era, a sentence of death was the penalty for hundreds of offences from pickpocketing to cutting down a tree to being out at night with a black face to rape and murder.³⁷ It was only after sustained activism that the death penalty was narrowed down by 1861 from 200 offences to 4.

Footnotes

¹⁹ Treating Indians as automatically of a lower class, they did not consider beheading which in Britain itself was reserved for upper class men and women.

²⁰ Reena Mary George, Prisoner Voices from Death Row Indian Experiences, (New York: Routledge, 2016).

²¹ Id.

²² Divya Metha, ‘Capital Punishment in India: Life, Death and Rebirth?’, Brown Political Review, November 29, 2016.

²³ David Skuy, ‘Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century’, ModernAsian Studies Vol. 32, No. 3 (July, 1998): pp. 513-557.

²⁴ TNN, ‘CrPC was enacted after 1857 mutiny’, The Times of India, May 5, 2008.

²⁵ George, Prisoner Voices.

²⁶ Id.

²⁷ C. Mohan Gopal, ‘Colonial Legacy’, Frontline, March 8, 2013.

²⁸ Id.

²⁹ Clare Anderson, ‘Execution and its Aftermath in the Nineteenth Century British Empire’, University of Leicester, last accessed August 17, 2018.

³⁰ Id.

³¹ Anderson, ‘Execution’.

³² Id.

³³ Id.

³⁴ Id.

³⁵ Id.

³⁶ Id.

³⁷ ‘A brief history of capital punishment in Britain’, Historyextra, March 27, 2018.