M. Reyaz, TwoCircles.net
A disclaimer first: Personally I believe that an eye for an eye may leave the world blind, or one eyed at best. And hence no matter how heinous the crime, life imprisonment (and that should mean till death) should be the maximum punishment given to anyone, whether shameful rape accused or terrorists.
In 2008, Amnesty International had brought out a report Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-2006, in partnership with the People’s Union for Civil Liberties (Tamil Nadu & Puducherry), and had observed: “The fate of these death row prisoners is ultimately a lottery.”
It had further added, “The administration of the death penalty in India has not been in the ‘rarest of rare cases’ as claimed in the country… On the contrary, there is ample evidence to show that the death penalty has been an arbitrary, imprecise and abusive means of dealing with defendants.”
Dr V Suresh, President, PUCL (TN & Puducherry) had then said: “While the death penalty continues to be used in India, there remains a danger that it will be used disproportionately against ethnic minorities, the poor or other disadvantaged groups. There is only one way to ensure such inequalities in the administration of justice do not occur: the complete abolition of the death penalty.”
In the aftermath of the execution of parliament attack convict Afzal Guru, I am forced to compare few cases here.
Protest at Jantar Mantar on February 9 after the execution of Afzal Guru
In August last year, while pronouncing judgment in the infamous Naroda Patiya massacre case in Gujarat Special Judge Jyotsna Yagnik had observed that ‘while death penalty may have been desirable, the global trend against the same in recent years cannot be overlooked.’ In fact she had added, “Use of death undermines human dignity.”
Now contrast it with the Supreme Court’s observation while awarding capital punishment to Afzal Guru on two counts in “a terrorist act of gravest severity.” The Apex Court had observed, “The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender.”
The opinion is greatly divided on whether Guru actually got ‘fair trial’ or not or if the evidence against him were not conclusive for while the court had found no evidence of him being a ‘member of a terrorist organization, once the confessional statement is excluded.’ At the same side it had argued, “Afzal, who is a surrendered militant and was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence.”
I would hence not go into whether he was actually guilty or not, for now it is too late. However, the bigger question is has the thirst of society for blood, or as the SC put it, “collective conscience of the society” been satisfied?
His execution has been hailed by many as politically motivated; one cannot ignore the fact that while Ajmal Kasab was executed before the winter session, Guru just before the budget session. Surely the Congress led UPA government wanted to trifle the main opposition party, BJP’s pet claims of being ‘soft on terror.’
Former Home Minsiter P. Chidambaram had on many occasions underlined the fact that Guru’s petition being 22 in serial order, would be taken up only when 21 preceding petitions were disposed.
So, how is it that the clemency petition of number 22 is rejected and the accused is executed in hush hush? Incidentally the last one to be executed at the Tihar jail was a Kashmiri separatist leader Maqbool Bhatt in 1984.
And before Ajmal Kasab, it was Dhananjoy Chatterjee who was executed for rape and murder of a teenage girl in 2004 after a hiatus of 9 years.
In 1980, the Supreme Court had ruled in the Bachan Singh judgment that the death penalty should be used only in the ‘rarest of rare’ cases. From the instance above, it only appears that the criteria for deciding the ‘rarest of rare’ cases is arbitrary – like lottery – ‘subjective’ and, in all possibilities, politically motivated.
In such a scenario, it would only be fit to do away with capital punishment. First as a special Gujarat court observed it “undermines human dignity,” and there is every possibility of ‘human error’ even by the most honorable judges. After all on these grounds 135 countries have abolished death penalty. Its time India should show some maturity and follow suit, lest to correct one wrong the government begins the killing spree, sending to gallows others waiting clemency.
Post-script: As I was discussing this issue on Facebook, a well meaning friend smirked: “Damn if you do, damn if you don’t…People have problem with everything and when it is someone from the 'minority' the issue is blown out of proportion.” Lest the issue remains confined to majority-minority rhetoric, the issue needs to be dealt with greater sensitivity.
(M. Reyaz is Assistant Editor of this news website.)