[Reader-list] Abolition of Death Penalty--A Time for National Reflection:PUCL

[asit das]

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  Abolition of Death Penalty – A Time for National Reflection: PUCL
November 23, 2012

<http://kafila.org/tag/capital-punishment-in-india/>

  *This release was put out yesterday by the**PEOPLE’**S UNION FOR CIVIL
LIBERTIES*

The secretive and stealthy hanging of Ajmal Kasab in Pune’s Yerwada Prison
yesterday, 21st November, 2012, brings to an end the legal process involved
in trying Kasab for the brutal assault by trained terrorists from across
the border on Mumbai, the commercial capital of India which left 166
persons dead.

The Mumbai carnage of November 2008, more popularly abbreviated to a single
term `26/11,’ constitutes one of the most heinous and deliberate attempts
in recent years to cause mass mayhem and terror in India. Kasab was the
only member of the terrorist team sent from Pakistan apprehended alive; he
was caught on film diabolically using his modern automatic weapon in a cold
blooded fashion, killing numerous people. The hanging, and the trial and
legal proceedings which preceded it,  admittedly  complied with existing
laws which permit death penalty, and cannot be faulted as such.  While it
may be argued, as many do  that the hanging will help in an `emotional
closure’ to the families of victims of 26/11, there are others who point
out that other key issues still remain to be addressed.  Families of
victims in specific, as also other concerned citizens, have pointed out
that Kasab was only a foot soldier and not the mastermind, who still remain
at large.

We cannot also lose sight of the fact the  reality that the backdrop of the
26/11 incidents is also the festering and unresolved internal conflict
inside Kashmir, which provides an easy emotive tool for demagogues to
indoctrinate and turn youth to become cold blooded `jihadi’ killers. To
them, the execution will not be a deterrence.

The extensive legal process  ending with the hanging of Kasab is pointed
out as a triumph of the of `rule of law process’ in India. In the same
breath this is also contrasted to the lack of such situation in
neighbouring Pakistan.  This discourse is however very worrisome; it
borders on `triumphalism’ on the one hand, and on the other, it amounts to
an attempt to `avenge’ or seek `vengeance’, and `eye for an eye and tooth
for a tooth’ mentality, which worldview has been rejected as dangerous
amongst a majority of 110 countries worldwide which have prohibited death
penalty in their countries.

Such triumphalist discourse is also worrying for it hides behind emotive
terminology very harsh truths of failure and miscarriage of justice in
other incidents of mass killings that have occurred in India. The `cry for
justice’ still remains a silent pouring of helpless anger in the hearts and
souls of thousands of families of victims  in incidents like planned and
cold blooded slaughter of over 3000 Sikhs during the anti-Sikh riots of
1984, the massacre of hundreds of Muslims in the wake of the Babri Masjid
demolition in 1992-93 (which ironically occurred in Mumbai also), the 2002
post-Godhra anti-Muslim carnage in Gujarat which saw over 2,000 Muslims
killed and thousands more rendered homeless and more recently in Kokrajhar
in Assam. A stark reality is the cynical manipulation and subversion of
police investigation by ruling political parties and the executive  to help
masterminds and perpetrators escape the clutches of the law.

In the surcharged emotional atmosphere in the wake of Kasab’s hanging,
even raising questions about the usefulness of hanging Kasab is considered
to be `traitorous’, unpatriotic and anti-national.  We in the PUCL
nevertheless feel that this is a moment in our nation’s history when we
need to pause and ponder, and reflect on the values that we, as a nation,
should uphold, particularly relating to crime and punishment, justice and
equity. We need to be conscious of the fact that a nation consumed by
outrage and filled with a sense of retribution easily confuses “punishment
and revenge, justice and vendetta”. We, as a nation, need to begin a
dispassionate public debate on the death penalty without judgmental,
indignant, righteous or moralist overtones.

PUCL has always taken a principled stand against the death sentence as
being anti-thetical to the land of ahimsa and non-violence, as constituting
an arbitrary, capricious and unreliable punishment and that at the end of
the day, the type of sentence that will be awarded depends very much on
many factors, apart from the case itself. PUCL and Amnesty International
have published a major  study of the entire body of judgments of the
Supreme Court of India on death penalty between 1950-2008 which
unambiguously shows that there is so much arbitrariness in the application
of `rarest of rare’ doctrine in death penalty cases that in the ultimate
analysis, death sentence constitutes a `*lethal lottery*’.

It may not be out of context to highlight that just two days before Kasab
was hanged, on 19th November, 2012, the Supreme Court of India pointed out
to the fact that in practice, the application of `rarest of rare cases’
doctrine to award death penalty was seriously arbitrary warranting a
rethink of the death penalty in India.

It is also well recognised now that there can never ever be a guarantee
against legal mistakes and improper application of legal principles while
awarding death sentences. Very importantly, the Supreme Court of India in
the case of `*Santosh Kr. Bariar v. State of Maharashtra’*, (2009) has
explicitly stated that 6 previous judgments of the Supreme Court between
1996 to 2009 in which death sentences were confirmed on 13 people, were
found to be `*per incuriam*’ meaning thereby, were rendered in ignorance of
law. The Supreme court held that the reasoning for confirming death
sentences in theses cases conflicted with the 5 judge constitutional bench
decision in *Bachan Singh v. State of Punjab* (1980), which upheld the
constitutionality of the death sentence in India and laid down the
guidelines to be followed before awarding death sentence by any court in
India.

It should be pointed out that of the 13 convicts awarded death sentence
based on this *per incuriam* reasoning, 2 persons, Ravji @ Ramchandra was
hanged on 4.5.1996 and Surja Ram in 5.4.1997. The fate of the others is
pending decision on their mercy petitions. In the meantime a group of 7 – 8
former High Court judges have written to the President of India pointing
out to the legal infirmity in the award of death sentences to these
convicts and seeking rectification of judicial mistake by commuting their
death sentences to life imprisonment. A very troubling question remains:
how do we render justice to men who were hanged based on a wrong
application of the law?

It is for such reasons, amongst others, that PUCL has long argued that it
is extremely unsafe and uncivilised to retain death penalty in our statutes.

It will be useful to refer to the stand on death penalty taken by 3 of
India’s foremost leaders of the independence struggle.

Mahatma Gandhi said,

 “I do regard death sentence as contrary to ahimsa. Only he takes it who
gives it. All punishment is repugnant to ahimsa. Under a State governed
according to the principles of ahimsa, therefore, a murderer would be sent
to a penitentiary and there be given a chance of reforming himself. All
crime is a form of disease and should be treated as such”.

 Speaking before the Constituent Assembly of India on 3rd June, 1949, the
architect of India’s constitution, Dr. Ambedkar, pointed out,

 “… I would much rather support the abolition of death sentence itself.
That I think is the proper course to follow, so that it will end this
controversy. After all this country by and large believes in the principles
of non-violence, It has been its ancient tradition, and although people may
not be following in actual practice, they certainly adhere to the principle
of non-violence as a moral mandate which they ought to observe as dar as
they possibly can and I think that having regard to this fact, the proper
thing for this county to do is to abolish the death sentence altogether”.

 Jayaprakash Narayan wrote more poignantly that,

 “To my mind, it is ultimately a question for the respect for life and
human approach to those who commit grievous hurt to others. Death sentence
is no remedy for such crimes. A more humane and constructive remedy is to
remove the culprit concerned from the normal milieu and treat him as a
mental case … They may be kept in prison houses till they die a natural
death. *This may cast a heavier economic burden on society than hanging*.
But I have no doubt that a humane treatment even of a murderer will enhance
man’s dignity and make society more humane”. (emphasis ours).

 PUCL calls upon all Indians to use the present situation as a moment of
national reflection, a period of serious dialogue and discussion on the
values and ethics which we as a nation of Buddha and Ashoka, who epitomised
humane governance, dharma and ahimsa, should accept and follow. The best
tribute we can pay to the 166 persons who lost their lives due to the 26/11
Mumbai carnage is to rebuild the nation in a way that equity and justice,
dharma and ahimsa prevails; in which there is no soil for discrimination
and prejudice, and in which all Indians irrespective of caste, community,
creed, gender or any other diversity, can live peacefully and with dignity.

We firmly believe that mercy and compassion are key values of a humane
society, which are also recognised in the Indian Constitution. We also hold
that abolishing death penalty is not a sign of weakness. Rather it is a
stand which arises from a sense of moral authority. It is when law in
tempered with mercy that true justice is done. Bereft of mercy our society
would be impoverished and inhuman; mercy is quintessentially a human
quality, not found elsewhere in the natural world. Excluding a fellow human
being from the entitlement to mercy will make our society more blood
thirsty, unforgiving and violent. We owe a duty to leave a better and less
vengeful world for our children by curbing our instinct for retribution.
That way we become a more humane and compassionate society. Recalling
Rabindranath Tagore’s vision in the `Gitanjali’, let us re-make India into
a `haven of peace’ in which future generations of Indians will rejoice and
flourish.

Sd/-

Prof. Prabhakar Sinha, National President, PUCL
Dr. V. Suresh, National General Secretary (Elect), PUCL


   - inSha