I am not in favour of death penalty, for many reasons. At the outset, let me list those reasons:
1. There is no evidence to the presumption that death penalty is an effective deterrent
2. Executing a human being is immoral, even if that human being is a murderer- it negates the difference between murderer and a civilised society.
3. Unlike other punishments, death penalty is not a retractable one. Even if we realise a grave error in the judgement, once executed, we cannot undo the damage.
4. Killing of a person is an indirect punishment and /or cruelty to his innocent near and dear. Unlike jail sentence, death of a person involves sorrow to others.
5. We are not a society that accepts the rule of ‘eye for an eye’. Then why do we take life for a life?
6. Death penalty, more often than not, involves the cruelty of waiting for one’s death. In India, this waiting gets extended to even decades and consequently the convict has to serve a life sentence before his death sentence. This is clearly more than what he was sentenced to.
For the above reasons, I would like to see the death penalty removed from the statute books. However, when I say this, I am also aware of the other side of coin - the need to inflict maximum punishment in some cases and the continued life of the person itself being a threat to humanity. Our judiciary has acknowledged this dichotomy and made death penalty applicable only to the rarest of rare cases. As a result, in India, the rule in murder cases is life imprisonment; death penalty being an exception reserved for the rarest of rare cases.
Notwithstanding our views on the death penalty, the fact of the matter is that it remains a part of our laws as it stands today. Adequate checks and balances, both judicial and administrative, have been established to ensure minimisation of any sort of error in imposing death on a person. Even after exhausting all the judicial avenues, our system provides for mercy petitions to the Governor and to the President of India, seeking pardon. Only when all these options fail to bring any success, the execution is carried out.
While all these procedures are completed, there is bound to be an unavoidable time delay. During this period the death row convict has to undergo the torture of living his life by a thread. In the words of US Supreme Court as cited by Supreme Court of India, “The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution. The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of the sentence and the actual infliction of death”.
While some time gap is unavoidable in completing the procedure, when the Government prevaricates on the decision on mercy petitions, the delay becomes inordinate and extremely cruel. In my opinion, any undue delay on deciding mercy petitions is not only illegal but also immoral (For more details, please see my Blog; Delay in Considering Mercy Petitions- No Less a Crime). Recognising this principle, Supreme Court of India had even commuted death penalty in some cases where there were inordinate delays in rejecting mercy petitions.
However, Governments seem to have not learned any lessons. Even now, most irresponsibly, they continue to delay the decision on mercy petitions. Come to think of it, neither a President nor a Government that delays a decision on a MERCY Petition is fit to continue in that position!
A very miniscule number of Human rights activists have always raised their voice for abolition of the death penalty. Unlike western countries where the clamour for abolition of death penalty is much higher, in India it has always been very subdued. Main stream political parties have never shown any interest in this regard. However, of late, there seems to be an increasing politicisation of the issue of execution of those who are awarded with death penalty by courts.
The new unhealthy trends
Excessive politicisation of every issue with emotive potential is the hall mark of our times. Even death penalty has not escaped this trend. The leaders and political parties that are supposed to be bound by the Constitution and legal system of India do not find it odd to raise their voices against execution of a death sentence, when the convict is a person belonging to their respective vote banks. Even the opposite is true- where parties do not find any moral or ethical issues when they demand immediate execution of certain convicts, if that suits their vote banks.
The demand for immediate execution of Afzal Guru, convicted in the Parliament attack case, is an example. The case of 26/11 Mumbai attacker, Ajmal Kasab, is an example where many are not even willing to wait for completion of the judicial process to hang him. While the former is a clear case of political exploitation, the latter is more of an emotional issue for many people.
On the other side, when President rejected the mercy petitions of Davinder Pal Singh Bhullar and Mahendra Nath Das in May 2011, the lack of ethics in political demands became very obvious. There was an immediate rush of demands and pleas for pardon in the case of Bhullar, who had killed 30 people by conducting a bomb blast in Delhi, while the Khalistan movement was active. However, this interest was not evident in saving the life or pardoning the other convict Mahendra Nath Das, who had killed only two people at two different occasions. The former was a terrorist act against the Nation while the latter was only a normal crime (though he had murdered the second person while he was out on bail in the case of first murder).
It was very clear that the cries for pardon in the case Bhullar had nothing to do with humanity but everything to do with his being a Sikh and belonging to the State of Punjab, where elections are due in a short while!
The Rajiv Gandhi murder case
Latest in the series to have the mercy petitions rejected is the infamous case of Rajiv Gandhi murder in which a suicide bomber, belonging to the Sri Lankan terrorist organisation, LTTE, carried out a bomb blast with the help and support from many others. A Former Prime minister who was facing the general elections, was killed along with other 16 other innocents in this war against Indian State.
There is no doubt, cases like that of Bhullar and the Rajiv Gandhi murder case falls under the category of rarest of rare cases, as per the conditions laid down by the Supreme Court. If at all, the only mitigating factor in these cases had been the inordinate delay in disposing the mercy petitions.
However, in the Rajiv murder case, many political groups in Tamilnadu (TN) have gone beyond all political decency by openly demanding the pardon for the convicts. These politicians who are (as usual) claiming to be speaking for entire people of TN (though people of TN includes those near and dear of the victims who are still awaiting justice), have forced the State Assembly to pass a unanimous resolution demanding that the death sentence be commuted to life imprisonment.
The legal and constitutional process in the Country, as it stands today, has determined the need to execute these persons. They have the right to approach the right courts to seek redressal of any grievance that they may still hold, including against the delay in disposing their mercy petitions. Incidentally, they have done precisely that by approaching Madras High Court and the Court has stayed the execution for 8 weeks.
However, the Assembly passing a unanimous resolution seeking the pardon from death penalty for specific individuals was an act which is unethical if not unconstitutional. Though that resolution is not binding on anybody, the moral pressure of a unanimous resolution from a State Assembly is sufficient to influence any decisions on the underlying matter. The very celebrations by sections of TN insulted the memory of the unfortunate victims!
Remember, the Assembly resolution has nothing to do with death penalty per se or delay in disposing mercy petitions. It is blatant political interference in the administration of justice, in a specific case, for the benefit of specific individual convicts. This very act goes against the principles of fundamental right of equality before law. What is applicable to Bhullar, Murukan, Perarivalan, or Santhan must hold true for Mahedra Nath Das as well. Merely because Das has no political vote bank to back him should not cost him his life.
Such interferences are bound to become precedents. In fact, similar pressure tactics used by Mr EMS Namboodirippad (the Chief Minister of the first ever elected Communist government) in getting pardon from President of India in the case of a Communist worker named Balan, many decades ago, is being cited as precedent for similar action by Tamilnadu. Consider the scenario; as rightly pointed out by the Chief Minister of Jammu & Kashmir, Mr Omar Abdullah, if tomorrow J&K Assembly pass a unanimous resolution and seek pardon for Afzal Guru, how would the Nation view that? Would it be seen in the same spirit and complacency as we have displayed in the case of the unanimous resolution by the TN Assembly?
From the above discussions, let me list out the desirables:
1. Our society and Parliament must revisit the death penalty, at the earliest and decide whether it is necessary to retain the same.
2 The President of India has a duty to ensure time bound disposal of Mercy petitions received by her. Any delay must be accounted for and responsibility fixed.
3 The delay per se should not be allowed as a ground to negate the judicial verdict of death sentence. Otherwise, we will witness the battery of lawyers (just look at the stalwarts appearing on behalf of the murderers in an infamous crime like Rajiv Gandhi murder case!) using all tactics in the law books to delay the process and then use that delay as a ground to get away from the death sentence.
4 Political parties or other groups must not be allowed to interfere in individual cases. That must be treated as contempt of court and dealt with accordingly.
Let us keep politicking and activism out of administration of law. Judicial decisions, especially in criminal cases, must rest on the law as it stands and not as desired. Otherwise the difference between terror supporters and political workers will soon get obfuscated, in cases like these, which will not be in the long-term interests of our democracy.