How will we kill Kasab? Let’s count the ways

"Death penalty diminishes us. It elevates the spurious notion of an eye for an eye as a desirable form of retribution" By: Salil Tripathi Soon after 26/11, Balasaheb Thackeray wanted him hanging in a public square. Perhaps Azad Maidan would do. Near the jhunka-bhakar stall where you can drink kala khatta and watch schoolboys play cricket. Or, perhaps in the ticket hall of the Chhatrapati Shivaji Terminus. Its floor was once bloodied, then it was wiped clean of bloodspots. Let there be more blood. How about the Gateway of India? Again, it could be somewhere near the Shivaji statue. Kasab to face the firing squad, looking at the rebuilt Taj. There, we rebuilt what you sought to destroy; there, your accomplices were killed; there, now you go—the rifles can point skyward, brought down at the command, the aim taken, shots fired. How about beheading him in a public square as they do in those countries? And then televise it—the networks would love it. The anchors will have a ring-side view, and they will describe, in graphic detail, as Kasab collapses—only once, not 166 times. See him writhe. Now, does that feel better? Or we could do something else—be like Norway. There, Andres Breivik bombed the city centre and went to an island and killed teenagers. Seventy-seven people died. They tried Breivik. They found him sane. And then they sent him to jail for 21 years. It is unlikely he will ever get freed. Two nations. Two men. Two evil crimes. Two deeds committed without remorse. And two verdicts. Seeking revenge is a deeply personal emotion. The survivors and the families of the victims will naturally have a different perspective of closure. But they know that killing Kasab won’t bring their loved ones back. Some may rejoice at the verdict, some may feel justice is served. Some will cling on to the memories of their loved ones. And a few may think that this verdict, and this punishment—if carried out—responds to a visceral desire among Indians who want to get even, who want to avenge many other crimes, a philosophy sharpened by the wars, the riots, the murders, the explosions, and make Kasab, the one who got caught, the poster boy of all those crimes, and pay for it, many times over. They may not want any part of that. The question is: is India a society or a lynch mob? Disclosure: I am against the death penalty. Not because it is not a deterrent—I don’t like it even if it is, because it is impossible to prove that it deters crimes not committed. Not because it is economically wiser to keep a person in jail, rather than spend on an appeals process which will add cost to the exchequer, because this isn’t about cost-benefit analysis. But because it can get it wrong—advanced forensics in the US have shown that many times the wrong defendant is executed. The Indian Supreme Court has noticed errors, too, as 14 retired judges, including A.P. Shah, the former chief justice of Delhi high court, have pointed out. And also because it can be biased—defendants who are poor, from a minority community, or who are not of sound mind, are more likely to get the death penalty than those who are better-off or from the majority community. (Of course there are exceptions.) And finally, because the death penalty diminishes us. It elevates the spurious notion of an eye for an eye, a tooth for a tooth, and a life for a life, as a desirable form of retribution. The death penalty gives the state the right to take the life of an individual, no matter how flawed. Executing a murderer does not bring back any of his victims. The death penalty is driven by a desire for revenge, not justice. In succumbing to such vengeful feelings, we embrace the murderer’s inhumanity, and forget our own humanity. Let the defendant who cannot be redeemed remain in jail, for life. Let him learn— not necessarily skills though that would be nice, but the ideas of remorse, of guilt, of shame, of repentance. Let him figure out how he can atone for what he did. Let us not do to him what he did to others, let us remind him why we are not like him. That is after all our strength, not weakness. Source: http://www.livemint.com/2012/08/30123926/How-will-we-kill-Kasab-Let8.html?h=A1 [accessed on 30th August 2012]

Justice A P Shah: India should join nations abolishing the death sentence

Manoj Mitta Aug 29, 2012, 12.00AM IST Justice A P Shah, author of the verdict decriminalising homosexuality, is amongst 14 retired judges who have recently attacked certain death penalties awarded by the Supreme Court. Speaking with Manoj Mitta , the former chief justice of the Delhi high court discussed this unusual form of judicial activism, why deciding the death penalty is so difficult - and why India should join other nations abolishing this punishment: The Supreme Court usually has an aura of infallibility - what made you sign a letter telling the president it had wrongly imposed death sentences in numerous cases? The issue involved the imminent execution of 13 persons in seven cases, even after the Supreme Court admitted on three occasions recently that its earlier judgments sentencing these persons to death were erroneous. Two similarly situated persons have already been executed pursuant to these flawed judgments - the Supreme Court's admission of error came too late for them. The errors occurred beca-use two-judge benches deviated from the liberal law laid down by a five-judge bench in the 1980 Bachan Singh case. How did these benches go astray? The Supreme Court came up with the solution of 'rarest of rare cases' for imposing the death penalty. Bachan Singh's case gave sufficient weight to the mitigating circumstances of the crime and the criminal. In the case of Ravji, decided by two judges, the Supreme Court explicitly held that it is the gravity of the crime but not the criminal which is relevant to decide appropriate punishment. Thus, Ravji's case is in direct conflict with the Bachan Singh ruling. The court in Bariyar's case noticed the conflict and held that seven of its judgments awarding the death sentence were rendered per incuriam, meaning out of error or ignorance. Following Bariyar's case, two more judgments condemned the illegal trend of disregarding the Bachan Singh mandate. Why has the Supreme Court not taken corrective action? The judgments, according to the Supreme Court's own admission, rendered per incuriam constituted the gravest known miscarriage of justice in the history of crime and punishment in India. The Supreme Court could have reopened those cases in exercise of its discretionary power under Article 142 of the Constitution and taken corrective measures to deliver complete justice to the prisoners. The absence of such measures forced the retired judges to send the appeal to the president. Can there be a foolproof system of ensuring the death penalty is awarded only in the rarest of rare cases? The criterion of rarest of rare cases hasn't resulted in any satisfactory solution. The Supreme Court's attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried and failed to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty. As pointed out by Justice V R Krishna Iyer, a legal policy on life or death cannot be left to ad hoc mood or individual predilection. Do you personally believe India should join the growing number of nations abolishing the death sentence altogether? Yes. India should join such nations as there is enough reason to believe that the legal safeguards aimed at avoiding a miscarriage of capital punishment have failed to deliver. Public opinion in India can no longer ignore the global movement in favour of abolition of the death penalty. A total of 130 out of 192 UN member states have abolished the death penalty in law or practice - India is one of the countries that retains the death penalty but rarely executes people. Source: The times of India http://articles.timesofindia.indiatimes.com/2012-08-29/interviews/33451351_1_death-penalty-bachan-singh-case-supreme-court [accessed on 30th August 2012]

Pranab sits on clemency petitions of 11 death row convicts

NEW DELHI Among the ceremonial invitations piled on the desk of India’s new President Pranab Mukherjee sits a small file that could provide the veteran politician with one of his biggest challenges. The folder contains 11 mercy petitions from condemned convicts for whom Mukherjee now represents the last legal obstacle between their death row cells and the hangman. As president, Mukherjee is required to decide on clemency petitions that are forwarded by the home ministry, in the final stage of death penalty appeals process. It is largely an inherited challenge. India has more than 400 people on death row and the courts hand down fresh death sentences every year. But Mukherjee’s three presidential predecessors, while signing off on a number of recommendations for clemency, often stonewalled when it came to appeals the ministry recommended should be rejected. As a result, only one execution has taken place in 15 years - that of a former security guard hanged in 2004 for the rape and murder of a 14-year-old girl. The lack of executions has led some to question why India retains a death penalty it so rarely enforces. Colin Gonsalves, an advocate in the Supreme Court and a founder of the Human Rights Law Network, points to surveys showing public opinion strongly in favour of capital punishment. “The idea of revenge is widely accepted here,” Gonsalves said. “If they try to abolish it, then the opposition will appropriate the issue and attack them,” Gonsalves said. Some legal experts believe the hiatus on executions partly reflects reluctance to hang people affiliated with an ethnic, religious or political group. “The government has to wait and check which groups will be upset before you execute someone,” said Supreme Court advocate Sanjay Hegde. Other observers say the main cause of the lack of executions has been the actions - or not - of Mukherjee’s three predecessors, KR Narayanan, APJ Abdul Kalam and Pratibha Patil. The recommendation of the home ministry can be returned for reconsideration - but only once, after which the president is constitutionally obliged to follow the ministry’s lead. However, there is no set time limit for providing the presidential signature, leaving room for endless delays. After taking office in 1997, Narayanan opted to sit on eight clemency petitions until his term expired. Kalam followed suit. As well as the eight he inherited, he received 17 more, but acted on only two. One was approved and the other rejected - leading to India’s last execution in 2004. The growing list of 23 pending appeals was then passed on to Patil who received another nine petitions during her tenure. In an attempt to clear the backlog, Patil acted on the home ministry’s recommendations to grant clemency in 19 cases and refuse it in two, including the case of Rajiv Gandhi’s murderers. She left 11 for Mukherjee, among them several toxic cases, including Mohammed Afzal Guru, a Kashmiri sentenced to death for his role in the 2001 attack on Parliament. Mukherjee may also come under pressure to reject any petition from Mohammed Kasab, the sole surviving gunman from the 2008 Mumbai attacks, who was sentenced to death two years ago. Source: Oman Tribune Thursday, August 30, 2012 http://www.omantribune.com/index.php?page=news&id=126078&heading=India [accessed on 30th August 2012]

Ajmal Kasab's mercy plea will be processed fast: Shinde

NEW DELHI: With a presidential pardon the only option before Lashkar-e-Taiba terrorist Ajmal Kasab after the Supreme Court upheld his death sentence, home minister Sushil Kumar Shinde on Wednesday said the government would ensure that the Pakistani's mercy plea, if it came, was processed in the minimum possible time. "If Ajmal Kasab files mercy plea, we will ensure that it is disposed of in minimum time," Shinde said when asked whether Kasab's execution would take time since he has the option of moving a mercy petition. The delay in disposing of mercy petitions of death row convicts has created unease within and outside the government. At present, 11 mercy petitions, including that of Parliament attack convict Afzal Guru, are pending with the President. Guru had filed his mercy plea in 2006. It took the government over five years to process his file before sending it to the President. Though the government gave its opinion rejecting Guru's mercy plea to the President over a year ago, it is still pending with the President's secretariat. It is the discretion of the President when to take a final call over the matter as the Constitution does not provide any time-limit to dispose it of. Home secretary R K Singh said Kasab has not yet filed any mercy petition. "We will see once he does," he said. Information and broadcasting minister Ambika Soni appeared more straightforward on the issue. She said while it was Kasab's constitutional right to seek a presidential review, such clemency should not be shown. "This was an awaited judgment by Supreme Court. I think the judgment should be abided by... Personally, I think there should be no clemency for such cases," she said. Source: The times of India TNN | Aug 30, 2012, 03.05AM IST http://timesofindia.indiatimes.com/india/Ajmal-Kasabs-mercy-plea-will-be-processed-fast-Shinde/articleshow/15969385.cms [accessed on 30th August 2012]

After six years on death row, spared for being a juvenile

Manoj Mitta, TNN | Aug 21, 2012, 02.59AM IST NEW DELHI: Capital punishment for a juvenile offender - that's inconceivable in law. Yet, after being on death row for six years, a dalit convicted in a multiple-murder-and-rape case has been found by a Maharashtra court to have been a juvenile at the time of the crime. The implication of this order passed last month is unprecedented: although his death sentence was confirmed by the Supreme Court in 2009, Ankush Maruti Shinde is entitled to be released at the earliest as the maximum penalty under the juvenile justice law for any crime is three years. Besides, the order passed on July 6 by an additional sessions judge of Nashik, R N Joshi, has rendered redundant Shinde's mercy petition pending before the President. The dramatic change in his fortunes is thanks to an application filed last year on his behalf by human rights advocate Vijay Hiremath seeking an inquiry into his age so that he could get the benefit of the juvenile justice law. If this age factor had not been taken into account before Shinde was tried and convicted along with five others, it conforms to the general pattern that people of lower castes and classes, for lack of proper legal representation, are more susceptible to arbitrariness in the award of death penalty. For, Shinde got the death sentence evidently because his counsels in the trial court, high court and Supreme Court had failed to point out the elementary but crucial detail that he was below 18 when he had participated in the massacre of five members of a family on June 5, 2003. It was only after he spent nine years in jail (first as an undertrial prisoner and then as a death row convict) has the injustice suffered by Shinde been redressed. And even this is because of the fortuitous circumstance of his cause being espoused by a human rights lawyer and his case going before a sessions judge who dared to get in the way of a sentence upheld by the apex court. In his 34-page order, Joshi declared that Shinde was a "juvenile in conflict with law" on the date of the crime as his age then was found to be 17 year, nine months and fifteen days. The basis of the declaration was eminently routine: the date of birth mentioned in the school admission register and school leaving certificate, which are accepted in law as conclusive proof of age. This means that instead of being sent to jail and tried along with co-accused before a regular court, Shinde's case should have been placed before a juvenile justice board and he should have been sent to a reformatory. In keeping with this strange background, Joshi directed that Shinde, who is "awaiting death sentence", be taken out of Nagpur's central prison and produced before Nashik's juvenile justice board. Since he has already been behind bars for thrice the maximum term he could have got under the juvenile justice law, the only thing that the board is expected to do now is to release him, with immediate effect. Source: Times of India Manoj Mitta, TNN | Aug 21, 2012, 02.59AM IST http://timesofindia.indiatimes.com/india/After-six-years-on-death-row-spared-for-being-a-juvenile/articleshow/15577973.cms [accessed 21st August 2012]