End of the noose?

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India has 400 people currently on the death row. N. Jayaram argues that however horrible the crime, the perpetrator has the right to a fair trial and conviction, but no one has a right over his life. He further argues that the death penalty is not a deterrent to further crimes, instead, it is often influenced by extreme emotions, which has even led to innocents being put to death.

“This country by and large believes in the principle of nonviolence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate, which they ought to observe as far as they possibly can and I think that, having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”

(India’s first law minister and one of the framers of the Constitution, Dr. B.R. Ambedkar)

A total of 140 countries have thus far abolished the death penalty in law or in practice: 98 are abolitionist for all crimes, seven for ordinary crimes, and the rest have not carried out an execution for so many years that the human rights organisation, Amnesty International, deems them abolitionist in practice.

All European countries except Belarus are abolitionist in law or practice. Much of Latin America and a growing number of countries in Africa are in that camp too. Contrary to popular perceptions, quite a number of Islamic countries or those with significant Muslim populations – from Albania to Uzbekistan – are also abolitionist in law and practice. It is Asia that is home to a large number of retentionist states, although here too, countries such as Bhutan and Nepal have shown the way by abolishing capital punishment outright.

India and the death penalty India is among the 58 retentionist states. The list not only includes autocratic ones such as Saudi Arabia, Iran and China, which carry out large numbers of executions every year, but also democracies such as the United States (U.S.) and Japan. However, in the U.S., 18 states and the district of Columbia have abolished it, and some others have not carried out an execution for years or decades.

That a person be kept alive and given a chance to repent and reform seems alien to many people, going by the volume and content of negative comments that any media discussion of the death penalty in India entails.

Although one of the main authors of India’s Constitution, Dr. B.R. Ambedkar was opposed to the death penalty, there was no consensus on the issue. And the authorities in newly independent India went against Mahtma Gandhi’s creed by hanging his assassin, Nathuram Godse, just days before the adoption of the Constitution.

As of today, more than 400 people are on death row in India. Never mind that in Bachan Singh vs State of Punjab, the Supreme Court of India had set out that: “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”. The “rarest of rare” guideline has been followed more in the breach by Indian courts at all levels, including the Supreme Court, which has even on occasion quashed a lower court’s order and increased the punishment to death penalty.

The ‘activist’ Supreme Court

Indian courts were sadly found wanting in handling the case of Afzal Guru, who was hanged in secret inside Tihar Jail in February 2013, following his highly questionable conviction over the 2001 attack on the Indian Parliament. Many eminent jurists, academics and leading journalists have written extensively pointing out gaping holes in the way his case was handled by the courts and the authorities. The Supreme Court said: “The collective conscience of the society will be satisfied only if the death penalty is awarded to Afzal Guru.” It was strange that a court of law should have pandered to its notion of what constituted “collective conscience”, instead of arriving at a decision based on points of law. That the government did not inform his family, and denied them the right to claim his body and bury it, has been widely condemned.

Afzal Guru’s was the second hanging the Indian state carried out secretly. In November 2012, Ajmal Kasab, the 25-year-old sole survivor from a Pakistani group that attacked Mumbai killing 170 people and injuring 300, was hanged in secret without any prior announcement, let alone discussion. With Kasab’s hanging, India lost a prime witness who would have been useful in trying to get Pakistan to proceed against Hafiz Saeed, said to be the mastermind behind the Mumbai attacks.

The idea that even people convicted of horrific crimes such as those in Gujarat in 2002, do not lose their inherent dignity is one that might find few takers in India, where despite much bandied about culture of tolerance, there is a great deal of intolerance and unreconstructed medieval attitudes to punishment and reform. That a person be kept alive and given a chance to repent and reform seems alien to many people, going by the volume and content of negative comments that any media discussion of the death penalty in India entails.

Why abolish the death penalty?

There are numerous arguments in favour of abolition.

It is not a deterrent. A comparison of the crime statistics of abolitionist Europe and retentionist United States, as well as that of abolitionist and retention states within the US, will bear this out. Professors Franklin Zimring, Jeffrey Fagan and Donald Johnson, compared two cities with near equal populations and levels of prosperity, namely Hong Kong and Singapore, and showed that abolition of the death penalty does not lead to a rise in crime. Once convicts are executed, they can never be resurrected. And in each and every jurisdiction, including India, there have been too many cases of the innocent having been put to death by the judiciary and the executive, thanks to their combined failures. Home ministers and other authorities who come under pressure following major acts of crime, make knee-jerk calls and promises of getting tough on criminals, without pausing to think of the causes of crime and the need to tackle them patiently and over time.

One of the oft-aired arguments in favour of the death penalty has to do with the wholly amorphous concept of victims’ rights over the life of perpetrators of crimes. In India, especially in recent years, whenever a horrific crime such as rape in urban areas occurs, the media – especially the electronic media – is quick to interview survivors for “sound bites”. Under aggressive interrogation, many survivors call for severe punishment – meaning the death penalty – for the convicts.

Unfortunately, this misses the point that victims or survivors have absolutely no right whatsoever on the life of a convict, howsoever dastardly his or her crime. Once the state authorities arrest a person and that person is tried fairly and is convicted, no one, not even the state, has any right over that person’s right to life. Any other procedure would be barbarian or worse. Incidentally, in the United States, where, as discussed above, a number of states do continue to execute people – mostly African-Americans – under controversial circumstances, there are growing voices from survivors against the death penalty. Murder Victims’ Families for Human Rights and Murder Victims’ Families for Reconciliation are among just two of several.

In India too, and in every other jurisdiction, it is the indigent and members of oppressed classes, castes and communities that get the death penalty. Members of the dominant communities and caste are almost never executed. Dhananjoy Chatterjee (albeit a Bengali Brahmin going by his name), who was hanged in 2004 following a shrill campaign by the wife of the then West Bengal chief minister Buddhadeb Bhattacharjee, was a mere security guard, and incidentally, maintained that he was innocent. As noted above, there have been too many cases of innocent people paying with their lives for crimes they did not commit, in India and elsewhere.

Apart from horrific crimes such as rape and murder or multiple murders, acts of terror often lead to calls for speedy trials and executions. But one person’s terrorist is another’s freedom fighter. Many people deemed terrorists by the British and the Arabs, went on to become prime ministers and presidents in Israel. The African National Congress used to be deemed a terrorist outfit. Leaders linked to the Irish Republican Army, considered a terrorist outfit by Britain, entered into talks with the Unionists in Northern Ireland and are today sharing power with them. Kurdish leader Abdullah Ocalan, whom Turkey deems a terrorist, was sentenced to death, but then Ankara which applied to join the abolitionist European Union, was obliged to scrap the death penalty. Ocalan’s life was spared and he now talks of a peaceful solution to the problem of the Kurds.

Closer home, Maoist violence and unrest in border states is met with brutal force by the Indian state, whereas the need is for long-term political solution to the problems faced by the oppressed Adivasi population, who fear losing their lands, forests, water sources and mountains to state-backed marauders from outside.

Two years ago, 14 retired judges signed separate letters to President Pranab Mukherjee, pointing out that death sentences given to nine people by various two-judge benches of the SC were “contrary to the binding dictum of rarest of rare”. Justices A.P. Shah, P.B. Sawant, B.A. Khan, Hosbet Suresh, Prabha Sridevan and others called for commuting the sentences to life.

It is not as if India is a stranger to abolition of the death penalty. Throughout history, there have been instances of rulers showing generosity and mercy in their treatment of criminals. The state of Travancore had abolished the death penalty, only to get it back upon union with India following independence. A chief judge in Bombay from 1804-1811, Sir James Mackintosh, oversaw a complete halt in executions and later noted: “Two hundred thousand men have been governed for seven years without capital punishment, and without an increase of crime.”

The BJP’s own leader, L.K. Advani , as home minister in the Atal Behari Vajpayee government, negotiated with Portugal to gain the extradition of Abu Salem, convicted for the 1993 serial blasts in Bombay, by waiving the death penalty. That is because Portugal is part of the European Union, all of whose members are committed to the abolition of capital punishment, and decline extradition of wanted fugitives to countries which retain the death penalty.

Moreover, the BJP has been less strident in demanding the death penalty in the cases of the Tamils convicted for Rajiv Gandhi’s assassination, and especially Balwant Singh Rajoana, prime accused in the 1995 assassination of Punjab chief minister Beant Singh. A comparison of these cases leads to the following conclusion: had the Tamils, Rajoana and Afzal Guru, not to speak of Kasab, managed to fly out to an abolitionist country, they could have avoided the death penalty. This charade ought to end. India’s media and civil society ought to apply greater pressure on the politicians to proceed towards a moratorium, preparatory to abolition of the death penalty, so that the country can stand tall in the company of the majority of states that have done so in law or practice.


N-Jayram

N. Jayaram

The writer is based in Bangalore after more than 23 years in East Asia and 11 years in New Delhi. He was with the Press Trust of India news agency for 15 years, and Agence France-Presse for 11 years. He now edits and translates for NGOs and academic institutions. He writes a blog: http:// walkerjay.wordpress.com.
(The views expressed in the article are those of the writer.)

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