Friday, July 31, 2015

More on the Death Penalty and Subjective Administration of Justice

In my previous post, I mentioned about the dangers from a judiciary that awards death penalty, based on subjective considerations, and not on objective criteria.  Such selective death penalties will surely lead to alienation among different groups.

Just to emphasize my point, let me quote from the judgment in the infamous Naroda Patya massacre, which was a part of the 2002 Gujarat riots.  
Para 8 (j):  Even though this can be considered as rarest of the rare case on the face of it, considering the fact of 96 murders and 125 serious hurt to attempt to murders, but while considering the fact that long time has elapsed to the communal riot of 28/02/2002 during which period they have also to face the trial, the accused have also undergone the agonies of the trial for 3 years in which, on about 400 days, this case was conducted.
Noticing the fact that the sword has been kept hanging for ten long years on the accused who were implicated in the crime, the purpose of deterrence has already been partly served in this duration hence, death sentence should not be awarded eventhough it is held that it is rarest of rare massacre. Principally, death sentence should be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime.
(k) A fact cannot miss the site that, it is no doubt a gruesome offence and the biggest massacre of post Godhra riot case, but the interest of justice would be served if it is kept in mind that the accused had undergone agony and the hanging sword for about 10½ long years.
The object of punishment is to deter the accused and since the crime committed by the accused is more serious and grave in nature, it should be appropriately handled so as to set an example in the society.
(l) The punishment imposed should be fit to the crime committed and that it is the duty of the Court to impose proper punishment depending on the degree of criminality. Improper and insufficient punishment can seriously undermine respect for law.
(o) In the facts of the case, when alternative to death penalty is available, it is better to embrace the same. There are ways to address this violent crime in a more constructive way in which precious lives were lost in a barbarous attack launched by the assailants.
(p) It is true that communal mind set is unfortunate and unhappy situation. Unfortunate deep rooted religious bias is the misfortune for any democratic country. On account of the lapse of time of ten and half years the agony of impending trial to the accused and suffering of their families, the case just falls short for death sentence but, it is undoubtedly rarest of the rare case. On account of the agonies of the accused, this Court feels some what reluctant in imposing the death sentence by holding the case to be rarest of the rare case.
Unquote (All emphasis supplied by me)

                I can’t find fault with the above judgment. In fact, I salute the judge who had withstood all the pressures and even threats to her life, during and after the trail. The judgment is currently under appeal before the Gujarat High Court. Reports have appeared that the Gujarat government is nudging the prosecution not to press for death penalty for the convicted persons. Therefore, any views on this judgment might be a bit premature. With that caveat, it is necessary to point out certain factors.

                Look at the order. The court is convinced that the cases falls under the rarest of rare cases. Anyone who has any idea about what was done in this case to the victims that included women and children cannot hold otherwise. It was indeed a rarest of rare case. Yet the court was so lenient and considerate towards the interests of the convicted persons that court felt reluctant to impose the death sentence “on account of the agonies” that the convicted murderers had undergone!

                Talking about the agonies of the murderers involved, one was a Minister for the most part, in the Narendra Modi Ministry, in Gujarat. I do not know how much agony is it to work with Modi, but surely not sufficient to escape death penalty in a rarest of rare case?!

                Now consider this. Yakub Memon was also found guilty by courts, again in a rarest of rare case. His trial also took a lot of time. Unlike Madam Kodanani, Memon was not enjoying the powers of a minister, but locked up in a jail, throughout the trial. But all the courts and the President had no reluctance in ensuring that he was hanged on time. Nobody thought the “interest of justice would be served” by anything less than his execution. Nobody thought it necessary to consider the “agonies of the trial” for so many years.

               Let me disclose that I am against death penalty for various reasons. But I respect the law of the land, as it stands today, which includes the death penalty. However, as a concerned citizen, I want the administration of law to be fair and equal, as envisaged in our Constitution. I have no complaints about the hanging of Yakub Memon who was found guilty in a rarest of rare crime, by our judiciary. I want all others who are found guilty in other rarest of rare cases also to be hanged, until we eventually decide to do away with death penalty.

                The reason is simple. Can the courts find a case rarest of rare, and then decide to proceed with a punishment, which is less than the death penalty?  I agree that for any civilized society, “when alternative to death penalty is available, it is better to embrace the same.”  But does it suit a civilized society or an objective judiciary, to award different punishments for similar (rarest of rare) crimes? Can grounds like agony of trial be different for different accused?

                Add to the above questions, the fact that two of the kingpins identified by the court (A-18 Babu Bajrangi and A-37 Dr. Mayaben Kodnani) were easily sent out on bail, pending appeal, by the higher courts. Also, consider the fact that some of the high profile terrorists, for whom the state legislatures had passed resolutions, were let off from the gallows on account of delay in deciding mercy petitions.   

Now, can you blame if some sections felt aggrieved about the absence of real justice in the system?  Is it sufficient to put intelligence agencies to eavesdrop on what is being said on the social media? Or is it necessary to address these concerns by undertaking systemic reforms in our judicial functioning? Should a democratic country ignore the perceptions of injustice among sections of the society? No doubt, punishments have deterrence value in our system, but its administration cannot be allowed to cause further alienation.

Hope, better sense will prevail.

Thursday, July 30, 2015

Death Penalty: Forget Memon and Think about the Dangers from a Subjective Judiciary!

Yakub Memon is no more. He was hanged till his death, by the state. Every killing, be it by a terrorist, a state, or by a common murderer raises various questions. These questions are triggered by the killings, but goes beyond the individual cases. In this post, I will deal with some of the questions related to the subjective exercise of the power to grant and execute death penalty, coming up in the backdrop of the latest hanging, of Yakub Memon. However, let us keep Yakub Memon out, as any reference to individual cases will only prejudice the views and harm the debate.

First question is about the death penalty itself. Undoubtedly, death penalty is not the only punishment for murders. Not all murders or even terrorists are executed. The debate about the death penalty will continue for a long time. Unfortunately, most people approach the issue very subjectively, in the light of specific executions. A lot of people seem to think nothing short of death is punishment enough. I will not go into details of the death penalty debate here (Those who are still interested in my views may read the 2011 post, Politics of Death Penalty and Mercy Petitions). Suffice to say, death penalty is a part of our legal system, as of today.

Without getting into the detailed debate on death penalty, let us consider the second question, why a lot of people support the executions, so vociferously? Is it because we are a blood thirsty people? Is it because we believe in the eye-for-an-eye justice system? Many people justify their support by citing the sufferings of the victims. In other words, the victims’ sufferings come to an end only by executing the revenge, by hanging the convict. When we adopt that logic aren’t we also justifying the original murder if it was carried out as a revenge for some perceived injustice to some victims? For example, many terror and extremist acts are carried out as revenge for the injustices meted out to some or other section of people!  The only logical counter argument is that it is the state alone that has a monopoly in revenge killings on behalf of any victim!

Third question is about the subjectivity in awarding capital punishment. Whether we approve it or not, so long as the death penalty is a part of our laws this question remains even more critical than the first two questions. If we adopt a law that every person convicted for murder will be hanged, then such a question will not be relevant. Similarly, if the law says only for such and such type of murders there will be death penalty, there won’t be any confusion. Our Supreme Court tried to address this issue by introducing a law that said death penalty will be awarded only in the rarest of rare cases. In other words, even the Apex Court felt that the death penalty should not be a natural choice for murders, as in an eye-for-an-eye kind of justice system.

                Nobody can argue that the justice system is a perfect one. If it was so, why we need appeals? The subjectivity of judges is an inevitable part of the justice delivery. In cases after cases, we have seen how the rich and powerful manage to stay out of prisons or punishments. We have also seen any number of convictions or penalties getting overturned in the appeals. Those who support death penalty by citing the objectivity of our judicial process only need to read the Supreme Court verdict in the Akshardham terror case where some people got saved after being awarded with the death penalty by the ‘objective’ lower judiciary and High Court. (Those who are interested may like to read my posts on this subject, Supreme Court Verdict in Akshardham Terror Case- Some Thoughts and Counter-Terrorism - POTA Style).  If the judiciary can make such grave errors in appreciating the evidences while awarding death penalty, as in the case of Akshardham terror case, the society has to be really concerned about the implications.

                Talking about the subjectivity, another question arises as to what are rarest of rare cases. Despite many judicial pronouncements on the subject there are no logical rules that applies across the cases.  If there is any objectivity is deciding what is a rarest of rare case, we would not have found those who were convicted for Naroda Patya massacre of 97 innocent people (including women and children) during 2002 Gujarat riots escaping gallows (I know some readers will accuse me of being selective in talking about 2002 while keeping silence about 1984. Let me remind, the judicial system has not even convicted people responsible for 1984. The quantum of punishment comes only after that). Similarly, a Kerala Court failed to see a planned murder that shook the conscience of Kerala, conducted with utmost cruelty, by a professional killer gang maintained by a political party, merely because the victim dared to oppose that political party, as rarest of rare!  I am not suggesting the convicted criminals in these cases should be hanged. What I am suggesting is the selective grant of death penalties, by a subjective judiciary.

                Fourth question relates to the mercy petitions.  What is the logic behind mercy petitions? Why should the Executive be allowed to undo a judicial verdict? Every government in power are concerned about vote banks and political fallout, more than furthering justice. A judiciary at least have the semblance of objectivity, but to entrust such a power to executive is simply dangerous. If the judicial verdicts has the finality, we can also avoid politicization of hanging, which makes us look like a blood thirsty people.

                Fifth question relates to the accountability for any delay in deciding mercy petitions.  It would be inappropriate for me to talk about Dr. Kalam and his unwillingness to decide mercy petitions, throughout his stay in the Rashtrapati Bhawan, as we bury him today. That apart, governments and Presidents have dithered for unreasonable periods, in deciding mercy petitions. Even the Supreme Court has agreed to this issues in principle. Supreme Court of India had quoted with approval the following words of the U.S. Supreme Court:
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” (You may refer my 2011 post, Delay in Considering Mercy Petitions- No Less a Crime).
As a result, the Supreme Court of India has treated the delay in deciding mercy petitions as a valid ground for setting aside many death penalties. It is a mere coincidence that on the same day it decided to send Yakub Memon to the gallows, the Supreme Court also decided to reject Central Govt’s plea against the commutation of death penalty of three terrorists involved in the murder of Rajiv Gandhi and others! The reason for the commutation was the delay in deciding their mercy petitions. Another prominent example is the case of Devinderpal Singh Bhullar who was awarded death penalty for killing 30 people in a terrorist attack. The Supreme Court commuted the death penalty of Bhullar, again on the ground of inordinate delay in deciding mercy petitions. Again, let me clarify, I am not complaining about the commutations, but pointing out the subjectivity and selectivity in making those decisions by which the judiciary had undone its own decisions to award death penalty. The justice would have served better if the Supreme Court fixed accountability or time limits for deciding a mercy petition instead of being selective in commuting the sentences. I have no hesitation to suggest the decisions to commute death penalties had to do as much with the so called public opinion and political clamoring as the delay in deciding mercy petitions.

                At least in the matter of life and death of a person, albeit a convicted person, let us not leave it to the whims and fancies of individual judges or governments of the day. Let us not stop the debate on these issues, now that Yakub Memon is hanged, until another person approaches the gallows. Let us have some objective rules on the death penalty so that each time a person is hanged or not awarded the death penalty, it serves the purpose of furthering justice. A subjective exercise of power by even judiciary is not in anybody’s interest.  

PS: When I tweeted about the total silence on certain serious allegations raised by an Ex Judge of the Supreme Court against the present Chief Justice and the government, somebody suggested that the Ex Judge is a maverick and we need not take his allegations seriously. Another serving Judge shared his fantasies about what he would do if he ever become a dictator! Now, when we know we have mavericks even in the Supreme Court, would we still prefer their idiosyncrasies, rather than well defined legal principles, to decide the life and death issues?



Wednesday, July 15, 2015

Rishi Raj Singh, APJ Abdul Kalam, and Democracy!

            Social media serves an important purpose by reflecting the unedited and unfiltered public opinion. One may agree or disagree with an opinion existing among the public, but it is critical to know the existence of such opinions.

            Rishi Raj Singh is an ADGP level officer of Kerala police. A man who follow unorthodox policing, Rishi Raj Singh has been a darling of the social media. Many a time, the support he received from the public was justified as the issues involved his taking on some or other entrenched and organized crime syndicate. His actions to uphold the rule of law and control the crimes in whatever field he may be working in, made him a kind of hero in many people’s eyes.

            The problem with deification of someone into a hero is that once given that status the fans are bound to seek excuses for rationalizing all his or her actions are heroic.  Just like in those movies, the hero can do no wrong. When a hero stalks and woman or use violence against his detractors it is all just part of the game! However, unlike the characters of action movies, individuals cannot be classified as hero and villain.  

             Perhaps this what happened when a large section of the social media extended full support to him when he failed to stand up and salute the Home Minister of the State when the latter arrived at a police function.  The Home Minister, being the political head of the Police forces, is, no doubt, the boss of the ADGP. It was also clarified by none other than the Chief of Kerala Police (DGP) that the police officers are required to stand up and salute when a minister walks in, into a public function.  

            Despite the clarification by DGP, social media continues to support Rishi Raj Singh.  Many excuses are presented to justify the indiscipline by a police officer. It was not surprising, given some of the public opinions already existing in some sections of Kerala. Not everyone in Kerala values the democracy or supremacy of political leadership. There are the right wingers who miss the ‘strong police’ that can stalk women or kill innocents, at will, just like in Gujarat. There are sections of dogmatic left that do not care for the democracy, in the first place. For them, democracy is only a means through which they can try and capture power. There is yet another group that yearns for the autocratic rule of Gulf countries as they think those countries are far more ‘efficient’ than a democratic India.  Then the usual anarchists, who will support anything and anyone that goes against the state and political leadership. There are the political opportunists who will support the officer as the minister happens to be a political opponent (thankfully, many saner voices from the opposite camp were not seen supporting the officer, in this instance).  Last but not the least, there are also those well meaning citizens who wants to support the officer since they think he has been wronged in the past by the state.

            I would like to deal with the last category of the opinion discussed above, in a little more detail.  I agree, the officer has been unceremoniously removed or transferred from many posts when his acts became too hot for the entrenched interests. Therefore, some people think that he has a right to show his contempt for the political leadership. However, as I indicated at the beginning we cannot classify individuals as heroes and villains and then rationalize all their actions based on our classification.  There may be hundreds of incidences where an officer is stopped from doing his right duty, for various reasons. There are also remedies available to him, in case he feels that he has been wronged. However, he cannot adopt indiscipline as a means for redressal of his perceived grievances. If such a thing is allowed to take place, every officer, soldier, or policeman will be justified in refusing to do his duty as perceived grievances exist in almost all cases.

            Perhaps, it is this well-meaning group discussed above, who sought to justify Rishi Raj Singh’s action by quoting Dr. APJ Abdul Kalam. A quote attributed to Dr. Kalam was circulated widely through social media. It said, “If you salute your duty, you need not salute anybody, but if you pollute your duty, you have to salute everybody

            This quote appears to be a very convenient tool to justify the behavior of the officer.  However, what the people forget or conveniently ignore is that saluting the Home Minister itself was a part of the officer’s duty.  People are given uniform and the procedures like saluting for a specific purpose. I wouldn’t even dare to think what would happen if any soldier and policeman adopts this above quote to justify their indiscipline in the forces!

            I know this sounds childish, but let me demonstrate what Dr. Kalam said was not meant to be taken literally.  Dr. Kalam had been the President of this Country for five years. Saluting and receiving salute was part of his duty, just like in the case of Rishi Raj Singh.
Have you ever heard Dr. Kalam refusing to give or take salute since he believed that saluting is not necessary unless one is polluting his duty? Apparently not, as these pictures here clearly show!  
           In this picture, Dr. Kalam is seen saluting along with the three Chiefs of armed forces. I am sure none of them thought they are saluting because they have polluted their duty! 

Again, Dr. Kalam is seen receiving the salute. I am sure Dr. Kalam would not agree that all those, whose salute he was receiving and reciprocating had polluted their duties. 

            Let me conclude by saying that this episode is another reminder about how shallow is our feelings for democracy.  We have to inculcate a respect for democracy and its institutions. If we perceive them to corrupt or bad, there are in built remedies but those do not include glorifying indiscipline among police or armed forces.

“Democracy is the worst form of government except all those other forms that have been tried from time to time” - Winston Churchill



Friday, July 10, 2015

Modi, Sushma, Pakistan, and Flip-flops!

            Modi, Sushma, Pakistan, Bilateral talks, and Flip-flops add to my confusion! Sorry, but this is not about my confusion. Even though the blog is all about the Confused Ambadi, this post is about a confused Pakistan policy of the Modi government, and the nation’s honour and credibility, at stake.

            When Modi Govt came to power, people were curious about its Pakistan policy. Narendra Modi had issued many strident statements against Pakistan and UPA Govt’s Pakistan policy. The new External Affairs Minister Ms. Sushma Swaraj had demanded getting ten Pakistani heads for the head of an Indian soldier that was allegedly taken away by Pakistani forces. BJP had consistently derided any attempt at bilateral talks by terming it as Biriyani diplomacy, on the ground that talks cannont go on so long as Pakistan fails to prosecute and punish the perpetrators and master minds of 26/11 Mumbai terror attack. Not to talk about the vocal and often abusive supporters of Modi on social media who would agree to nothing, as far as Pakistan was concerned.

            Such militant positions by the supporters and leaders of the incoming government would cause concern to anybody who is interested in the regional peace. However, the roles were reversed with the innovative swearing in ceremony diplomacy and the consequent exchange of garments between Indian and Pakistani Prime Ministers. The supporters and media (not much difference in between) described it as a great diplomatic coup by Modi after an ‘ineffective’ Manmohan Government.

            Well, the story had anything but a happy ending. Soon the skirmishes got exacerbated on the border with many more heads of Indian solders falling on the ground. Fortunately for the peace lovers, Sushma Swaraj had given up the 10 for 1 bargain style. India blasted a boat from Pakistan, along with the people on board, accusing it of involvement in another 26/11 type terror act.  Pakistan continued to provoke India with its overtures towards Kashmir separatists. However, talks also continued intermittently. The talks between Pakistan would commence on a day and get stalled on the next day. The only moot point remained as to what could be the possible trigger for the beginning or ending of a talk with Pakistan!

            In one of the latest provocations, the Pakistani court released the 26/11 master mind Lakhvi on bail (some people point out that a government cannot be held responsible if a court orders release of an accused on bail, be it in the case of Lakhvi and the like in Pakistan, or many persons in India accused of terror acts).  India made very strong protests on this issue which remains sensitive back home.  India even approached the United Nations to seek action against Pakistan on this issue. The move, however, was blocked by another ‘close friend’ of Prime Minister Modi, the People’s Republic of China, despite all the latest rock star visits and bonhomie!

            It was against this back drop that India’s External Affairs Minister, Sushma Swaraj issued a statement that there is no flip-flop in her government’s stand on talks with Pakistan. She categorically stated, “No talks could be held as long as Mumbai attack mastermind Zakiur Rehman Lakhvi was walking free.”  This statement was issued on June 01st, 2015.

            Zakiur Rehman Lakhvi is still walking free. Pakistan continues to be belligerent on the Line of Control, with the killing of an Indian solder taking place just three days before, on 06th July 2015. However, India’s Prime Minister Modi chose to meet and talk with his Pakistani counterpart, Nawaz Sharif, at Ufa, in Russia, on the sidelines of BRICS summit! As usual, no explanations are expected on what changed India’s stand on 'no talks with Pakistan as long as Lakhvi is walking free,' or continuation of unprovoked attacks on Indian soldiers, from across the LoC.

            BJP sought to justify the latest talks. The recently converted leader of BJP, MJ Akbar, reportedly claimed, "For the first time Pakistan has accepted to combat terrorism in 'all its forms." However, Congress was quick to point out that similar joint statements were issued way back on 08th September, 2012.  

            If we agree with Sushama Swaraj that the latest talks are not a part of an ongoing flip-flops, then what it is? Where is the credibility for India’s diplomacy if one day India’s External Affairs Ministers says not talks, and the next day, India’s Prime Minister agrees to a summit meet?  Will any nation take India’s words of caution, seriously?  Can any self-respecting External Affairs Minister continue in that post after such a rebuff from the Prime Minister?

Well, I confess, I am all for talks between countries even when things are not going well. However, I am thoroughly confused by this policy, or lack of it from Modi government! The only ‘plausible’ explanation seems to have come from Lalu Prasad’s RJD, which said the talks are an outcome of Modi’s “emphasis on ‘photo opportunity’ and uploading pictures on Twitter rather than respecting what India needs.”

P.S:      As of 14th July 2015, it has become clear that apart from the 'photo opportunity' and 'pictures on Twitter' nothing is likely to come out of this flip-flop diplomacy with Pakistan. Pakistan refused to move any fresh application for obtaining Lakhvi's voice sample, termed the discussions with Modi as informal, and stated that no formal discussions will take place without including Kashmir as part of the agenda! After the initial 'mandatory' euphoria, many are already talking about how 'India' (not Modi Govt) has been taken for a ride by Pakistan!