Abolish Death Penalty India: Rajiv's killers: NDA move may bring sanity to the death penalty debate

Friday, February 6, 2015

Rajiv's killers: NDA move may bring sanity to the death penalty debate

by R Jagannathan Jul 25, 2014 22:06 IST If the execution or commutation of a death sentence is not to remain a political football, it is clear that the current process is simply untenable. The NDA government has raised an important question on the issue: can the release of a convict be something that is only between him and the government? If this idea is taken to its logical conclusion, it will balance and bring sanity to the death penalty debate. According to this Times of India report, Solicitor General Ranjit Kumar this week asked the five-judge Supreme Court bench which is hearing the case for freeing the killers of Rajiv Gandhi a pointed question: “Should the relatives of those killed in the blast (that killed Rajiv and 17 others) be not permitted to challenge the Supreme Court's decision to commute the death sentences of the condemned prisoners? Would it be correct to decide the issues relating to (the) remission granted to prisoners, whose death penalty had been commuted to life imprisonment, be decided merely on an application made by the convict to the government?”

This is a great question, and, in fact, is the missing link in questions about the death penalty. It is also vital to reducing the element of political arbitrariness in the execution of death penalties, their commutation, et al. In 2012 and 2013, Ajmal Kasab, the Pakistani terrorist who was part of the 26/11 attacks in Mumbai, and Afzal Guru, who was convicted for the December 2011 attack on parliament, were hanged after long delays. The Congress-led UPA, which had been dithering all along, confirmed the executions – one suspects – largely to show it can be tougher than Narendra Modi, then emerging as the real challenger to the UPA.

Kasab was executed just ahead of the Gujarat assembly elections, and Afzal Guru a few months after that – just as the BJP was seeking to make Modi the prime ministerial candidate. But then a strange thing happened. Several other convicted assassins – Santhan, Murugan and Perarivalan, all convicted for the killing of Rajiv Gandhi, and Balwant Singh Rajaona, convicted for the assassination of former Punjab CM Beant Singh – were spared the noose. And last year, the Supreme Court commuted the death sentence on Rajiv’s killers on the plea that by delaying their executions so much, an injustice was done to them and their families. It is clear why Kasab and Guru went to the gallows and why Rajaona and the Rajiv’s killers did not – the former did not have strong political backing, while the latter two had political godfathers in the Punjab and Tamil Nadu governmentswhich moved to save them from the gallows (allegedly in deference to public sentiment). And after the Supreme Court commuted the death sentences of Santhan, Murugan and Perarivalan, Tamil Nadu Chief Minister J Jayalalithaa hastily announced a decision to let them go free. This blatantly political act forced the Supreme Court to stay their release last April, and in the process new ideas are coming to the fore — as evidenced by the Solicitor-General’s posers to the Supreme Court bench, which is headed by Chief Justice RM Lodha. Thus far, those who want to abolish the death penalty have been focusing too much attention on the convicts and their families, thinking little about the families of the victims. But if death sentences and their commutation, and even the release of convicts, can be decided without any reference to the real victims — the families of those affected by the acts of killers — how can justice be said to be done? Revenge and the need for punishment of criminals is not just about the state doing its bit. It is also about bringing closure to the families of the victims as well. In the Rajiv Gandhi assassination case, it was not only Rajiv who got killed in the blast set off by LTTE suicide bomber Dhanu. Seventeen others, including policemen, were killed and scores injured. Their families have suffered. How can the law presume that the agony of a killer’s relatives is greater than that of the families of the people they killed, maimed or injured? If delay in carrying out a death sentence is agony for the former, it is doubly so for the victims. A killer freed may make his family celebrate, but can the families of the victims feel happy about this? The Solicitor-General has done well to bring parity to the process of accepting or rejecting mercy pleas.

A formal structure to obtain the inputs of the families of the victims is vital to the process of justice. There are several good and practical reasons why victims’ kin must be brought into the picture. One, it makes for a better form of closure. If the families of the victim are willing to forgive and forget, any commutation will carry more moral weight. If not, they are merely abiding by the court’s final decision. Two, by giving the families a say, many such decisions can be taken out of the ambit of politics. In the Rajiv killers case, while politicians are seeking brownie points by pretending to feel for the convicts and their cause of Tamil Eelam, the real victims – the families of the 17 others killed – were simply left out of this empathy process.

Now, if they agreed to the commutation and release, it would be a case of truly forgiving and forgetting. If they don’t agree, it frees the state government from having to prove to the electorate it had sympathy for the killers’ families. Three, in the Afzal Guru case, where the Kashmir sentiment was ignored because it was unimportant in the larger context of Indian politics, the government ended up shamefully hanging him and not even intimating his family in time. Now, Guru has been elevated to a big hero in the Valley. But if the victims of the Parliament attack had formally been brought into the picture, he would have been less of a hero. Guru would, in this case, not just be the victim of arbitrary justice, but paying for his sins.

There is a strong case for giving due weightage to the feelings of the families of victims when it comes to taking decisions about the death penalty. PS: A lot of arguments were raised on twitter, subsequent to the publication of this post, about letting the kin of victims have a say in the commutation of a death sentence or the release of convicts. I would like to clarify that I am not calling for the kin to have a say in what penalty should be awarded for a crime, but only about having a say in the post-judicial phase. I believe the kin of the victims should be consulted in case the government wants to commute a sentence. It can still take its own decision, but consulting kin would, according to me, allow the government to take their feelings into account while deciding. A forgive-and-forget attitude from the kin would help a decision in favour of clemency. I am not suggesting a veto to the kin, nor any say for them in deciding the punishment.

Source: http://www.firstpost.com/india/rajivs-killers-nda-move-may-bring-sanity-death-penalty-debate-1634377.html [last accessed 06.02.2015]

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Friday, February 6, 2015

Rajiv's killers: NDA move may bring sanity to the death penalty debate

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