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.

No comments:

Post a Comment