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.
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