Is death the answer?
Amid the shrill demand for executing “killer machine” Ajmal Amir Kasab without delay, and an equally vociferous counter argument favouring abolition of the death penalty, Karnataka Lokayukta and former Supreme Court judge, Justice Santosh Hegde, recalls how he once reversed the life sentence of a killer convict and condemned him to death.
The case involved a man, who had murdered a septuagenarian couple, a 16-year-old girl and two little children in one brutal sweep. Justice Hegde and a brother judge of the Supreme Court heard the appeal against the Allahabad High Court’s life sentence and not only reversed the sentenced but also enhanced it to death penalty.
The critical note here is that the brother judge had himself pronounced the life sentence while he was a judge of the High Court, prior to his elevation. And when convinced by the grounds for enhancement of punishment, he readily consented, says Justice Hegde, declaring that victims of every crime deserve some sort of justice, as also their loved ones, who must feel that law has done them justice.
Death penalty is legitimate in law and natural justice, asserts Justice Hegde. There may be complaints that innocent people are being sent to the gallows. These are views of human rights activists, who argue that human beings do not have the natural right to kill people.
This may be true in the case of despots and dictators. But not so in a legitimate democracy where the rule of law exists, he argues.
Even religion authorised killing at war. “Don’t you kill an opponent at war. Why do you differentiate between killing an enemy soldier, against whom you have no enemity except may be differing with his political philosophy, and killing a criminal? counters the former judge.
Some countries of the European Union have abolished death penalty but still mete out death for killing a policeman or violating the sovereignty of the country. How can there be differential treatment just because a person is not a policeman or a soldier, he asks.
The death penalty was always the first choice of a judge while sentencing. It was also there in civil society for a long time. It is only recently that life sentence has replaced death as the first choice for a sentence, he notes. Criminal jurisprudence enjoins that the death row is awarded only after guilt is proved beyond all reasonable doubt, in rarest of rare cases and with an obligation resting with the judge to reduce the sentence against extraneous circumstances, he adds.
Earlier, it was the prerogative of the judge to pronounce the judgement. Now, once conviction has taken place, the judge calls the prosecution and defence lawyers and asks them about the punishment to be awarded. “The Indian Penal Code has stood the test of time. It is the courts that have failed by bringing in special laws,” he rues.
On appeals against death rows dragging on indefinitely before higher courts and the President being petitioned for clemency on the ground that the guilty person has suffered enough awaiting death, the Lokayukta says these are “self-inflicted” wounds.
“The prosecution did a very good job in Kasab’s trial. Yet, to find him guilty, it should have taken a maximum of six months. There was no need for examining hundreds of witnesses, who were mostly repetitive. In fact, it is dangerous to examine so many people as they will not recount in the same manner. The Supreme Court has repeatedly said it is not the quantity but the quality of evidence that matters,” contends the former judge.
One-and-a-half years have lapsed since 26/11 Mumbai carnage and it may easily take another six to seven years before Kasab’s death sentence can even reach the President of India for clemency, if sought. Going by Afzal Guru’s mercy petition, the President could be just as “over cautious” in honouring “seniority” of petitioners, and the government might again ply its holier than thou attitude.
Until such time, reform in one critical area is certainly overdue - criminal investigation.
“Police investigation has remained static. It is imperative to strengthen their hands to deal with sophisticated crimes,” signs of the Lokayukta.
No place for biblical eye for an eye
The award of death penalty to Ajmal Amir Kasab, the lone surviving terrorist of the 26/11 Mumbai carnage, was expected. Given the enormity of the crimes committed by Kasab and his accomplices, there is a demand to hang him. The question is whether India will continue with its unofficial moratorium on death penalty since the execution of Dhananjoy Chatterjee in August 2004 or keep the symbol of terrorism alive.
The Asian Centre for Human Rights (ACHR) as a matter of principle opposes death penalty to any convict. This principled opposition to death penalty is not dependent upon the facts and circumstances of a particular case. The ACHR considers death penalty as a violation of the right to life. The ACHR further believes that “imprisonment till death’’ for the most serious crimes would suffice.
The Supreme Court of India in Bachan Singh case in 1983 ruled that the death penalty be imposed only in ‘‘the rarest of rare cases.’’ There are 308 death row convicts lodged in different jails across the country as per the Home Ministry’s reply in Parliament in December 2009. The award of death penalty is the norm and application of the ‘‘the rarest of rare cases” principle is an exception. Further, Section 303 of the Indian Penal Code makes the award of death penalty to “whoever being under the sentence of imprisonment for life, commits murder” mandatory.
That India has a large number of death row convicts is not surprising considering the number of capital offences: murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the State, abetting mutiny by a member of the armed forces and terrorist activities. There are frequent demands to include capital punishment for many heinous crimes, including rape.
Death penalty not a deterrent
There is no empirical evidence to suggest that death penalty acts as a deterrent against crimes in India or elsewhere. Despite the execution of thousands of convicts in India, including 1,422 executions that took place in 16 Indian states from 1953 to 1963 according to a report of the Law Commission of India in 1967, none of the capital crimes has reduced in India. Similarly, high number of executions each year in Iran, Iraq, China and the United States have not reduced crimes in these countries.
To deal with crimes of terrorism in this age of fidayeen attack – where individuals are willing to die - death penalty cannot act as a deterrent. It is the alertness of the security forces and the citizenry. The arrest of the latest New York’s Times Square bomber, Faisal Shahzad, shows that there is no substitute to alertness, effective investigation and timely interventions. It was not only the citizenry who alerted the New York Police Department, but the investigators also acted swiftly to arrest Faisal Shahzad from a Dubai bound flight.
With regard to the 26/11 Mumbai carnage, there were sufficient and specific intelligence inputs about the impending attacks. Had the authorities acted on intelligence inputs, the carnage could have been avoided. While India celebrates the verdict against Kasab, it must not forget the failure of the authorities to act on the intelligence inputs.
The conviction of Kasab through a fair trial is democracy’s response to terrorism and violence. Punishment is not meant to be for revenge or retribution but to be the assertion of the civilised society against barbarity and terrorism. A total of 79 countries have abolished death penalty. These countries are not less secure than India. India must join these countries and adopt methods of punishment which commensurate with development of human civilisation, even against barbarity and crimes against humanity.
(The writer is Director, Asian Centre for Human Rights, Delhi.)