No modern institution should arrogate to itself the right to kill

Is society’s bloodlust and abhorrence now meant to dictate and shape judgments in the highest court?

February 18, 2013 in Columns
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CLEARLY, PRANAB MUKHERJEE was better occupied as a finance minister befuddling corporate giants with retrospective taxes and checkmating his peers with adroit power games within the government. As President, his formidable intelligence does not seem to have found any worthy diversion. And so here we are, with a rash of death sentences: the new presidential pre-occupation. Ajmal Kasab; Afzal Guru; and as I write this, news coming in that he has rejected mercy petitions of four accomplices of the sandalwood smuggler Veerappan, convicted for killing 22 policemen in Karnataka. Almost certainly, there will be more in the days ahead.

There is a loud section of Indians delighted by this show of decisive muscularity. But, gratefully, there are others filled with deep misgiving and shame. By every civilised yardstick, India should have abolished the death sentence long ago. No matter what the crime, how can any modern institution arrogate to itself the right to kill? What separates us then from earlier centuries when bloodthirsty crowds gathered to watch public executions and clap with glee? If barbaric “deterrence” is the rationale, we might as well go the full Taliban route: chop hands, stone, whip and behead.

But there are other urgent reasons why capital punishments must stop. There is, first, the enormous possibility of human error. Even a cursory look at the history of death sentences in India makes that painfully evident: trial courts that award death; high courts that overturn; a Supreme Court that reinstates. Or more starkly, trial courts that award death and high courts or the Supreme Court that acquit in the same case. Clearly, even at their finest, judgments can only be contingent things. At a stretch, societies can countenance a wrongly awarded punishment, but a wrongly awarded death?

There is, also, the question of whimsy. The courts themselves have been deliberating — rather chaotically — the randomness with which the “rarest of rare” test is applied before passing death sentences. In November 2012, for instance, Justice Madan Lokur set aside a death penalty in a murder case and regretted that such awards had become a matter of “judicial discretion”.

But clearly regret is not enough. In February, a Supreme Court Bench set aside death penalty for a man convicted of killing his wife and daughter on parole. He had been jailed for raping his minor daughter, but the court felt he was not beyond reform and commuted his sentence on humanitarian grounds. A few days later, though, another Bench sentenced a man to death for killing a seven-year-old boy. This time, the court felt the “rarest of rare” test held good because of the extreme distress the parents must have felt at the loss of their “only male child”. What can one say about judicial thinking that distinguishes the severity of crime — and the validity of a death sentence — based on the gender of the victim?

But things are likely to get darker and messier. Last week, while criticising such judicial discretion, Supreme Court judges Justice KS Radhakrishnan and Justice Dipak Misra went one step worse. According to media reports, they said, “while applying the rarest of rare test on cases, the courts must look into a variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes…” They also said, among other things, such decisions must be driven by the “perception of society” and the will of the people.

Such benchmarking threatens to take India back to the Dark Ages: Enter the era of the street. Is society’s bloodlust and abhorrence now meant to dictate and shape judgments in the highest court of the land? And when there is a divergence of opinion, who is going to judge what the “will of the people” is and who constitutes “society” and what its “perception” is? Are we going to hold referendums on every case? Or are judges meant to get a “feel” of the “pulse of the people” from those who make the most noise?

Afzal Guru’s shameful hanging refracts all these uncomfortable questions. The unseemly speed and secrecy with which he was hanged despite big differences in opinion; the fact that his family was not given time to prepare; the draconian and insupportable crackdown in Kashmir; the arbitrary detention of journalist Iftikhar Gilani; the cynical political second-guessing: this is not the India our Constitution promised us. This is a country whose fundamental rights are increasingly being replaced by fundamental restrictions. Guru’s death was meant to “assuage” the conscience of society. I’m a citizen of India, but like many others, my conscience was not assuaged by his death. What will the Supreme Court do with that conundrum?

And yes, let me state the obvious: I do strongly condemn the terror attack on the Indian Parliament.

shoma@tehelka.com

19 Comments

  • King February 14, 2013 - 9:34 pm Reply

    Capital punishment is a must to keep a check on the increasing crime. More death penalties will lead to less crime and of-course the justice should be same to all. There is a different law to one community and there is another law to another communities in India. As long as justice is done, nobody should object regarding the decision.

    • Sumanth February 14, 2013 - 10:15 pm Reply

      The recommendaitons by judges n experts is that Capital Punishment is not going to solve problems. We must try to improve the morale of the people. By improving literacy and making more people “thinkable” we can remove all the maladies of the society. The results may be not immediate but its high time to start at it

  • Name (required) February 14, 2013 - 10:14 pm Reply

    The recommendaitons by judges n experts is that Capital Punishment is not going to solve problems. We must try to improve the morale of the people. By improving literacy and making more people “thinkable” we can remove all the maladies of the society. The results may be not immediate but its high time to start at it

  • Ambrish Dwivedi February 14, 2013 - 11:45 pm Reply

    I think law of my country wants to do either of the following with the guilty guys —
    1. Reform them – jails are meant to do this with the guilty folks.
    2. Punish them – so charge them some money,I dont know if they are allowed to torture the guilty guys as form of punishment…solitary confinement they can i think.
    3. Give up on them – life sentence , remain in jail away from the world.
    Now I see something new …
    4. Take revenge on them – So Kill them.
    Government/Lawmakers take notice of our anger but not our revenge.Remember taking revenge is prohibited under law.

  • Harikrishnan S. February 15, 2013 - 1:33 am Reply

    I do not understand what it has got to do with society’s bloodlust and abhorrence. And the statement “no modern institution should arrogate to itself the right to kill, whatever be the crime” is, I would say, grossly irresponsible, and the whole argument for the abolishment of death penalty reeks of insensitivity and political correctness.

    One look at the statistics and you will know that it is a very rarely carried out sentence in India:

    Since 1995, it has been used only four times, on Auto Shankar in 1995, Dhananjoy Chatterjee in 2004, Ajmal Kasab in 2012 and Afzal Guru in 2013. As of 11 February 2013, there are 476 convicts on death row in India. States with the maximum number of prisoners on death row are Uttar Pradesh (174), Karnataka (61), Maharashtra (50) and Bihar (37).

    The death penalty is imposed only in the “rarest of rare cases,” and as you can see from the above statistics, imposition of the penalty is rarely followed by execution (even when it is upheld on appeal). My take is that executions should be carried out much more swiftly and decisively. The perpetrators of crimes of the most grievous kind obviously do not deserve to live in a civilized society. And you cannot, however much you try through education or any other means, change the mental make-up of a sociopath. And no punishment has ever worked (or would ever work) as an effective deterrent for a deviant mind, but at least by doing away with such beasts (and they are not the endangered kind!), we could take some solace in the fact that we have one jerk less to deal with in our world.

  • amreetaa February 15, 2013 - 2:35 pm Reply

    some clarfifications required from author; 1) capital punishment or life sentence? 2) terrorist vs victims? 3) kasab’s hanging is barbaric? 4) what do you suggest in Nirbhaya’s case? if they are given death sentence, is it barbaric?…pl dont use words just to oppose or criticise, you hurt sentiments of so many people killed by these criminals. if yo stand in against of capital punishment, then do write but pl dont say that death sentence tfor such heinous crimes is BARBARIC or for BLOODLUST!!

  • Pradeep February 15, 2013 - 4:13 pm Reply

    Well a Judicial error is not a problem of the family of the victim. For Victims family a sense of Justice has to prevail. What are the rights of the victims and their family? Don’t they have any say or rights? The victims don’t even get to say goodbye to their loved ones and taken away in a brutal fashion. What exactly is a civilized society? A society where we victimize the victims and their families and treat convicts with kid gloves? The earth is already burdened – it doesn’t deserve murderers, rapists, child rapists to be further burden it. First of all getting Justice in India is a miracle – and then there are people like you advocating clemency to the convicts – disgusting!!

    • Ahmed February 16, 2013 - 11:16 am Reply

      Bosss… Did u even read the story…?
      I too advocate immediate punishment to such convicts, but here the guy was not even convicted… Apart from his statement that it was the DSP of STF who sent him delhi to find a flat (which was not even probed) many evidences were infact against his involvement.

      And the most amazing thing is the final judge words.. – Although we dont have any direct evidence but the punishment must be given for the satisfaction of the nation.!

  • Samanth February 15, 2013 - 5:46 pm Reply

    State must not kill

  • Manish February 15, 2013 - 10:38 pm Reply

    While we now that Tehelka stands for truth but at times, it also stands for what I call injudicious truth.
    The foulest crimes deserve the most severe sanctions; first-degree murder involves the intentional slaughter of another human being. There are crimes that are visceral, but there are none that are more noxious. Such an atrocious crime can only be reprimanded, in an unprejudiced and fair manner, with the death penalty.
    There is a zero-sum symmetry to capital punishment that is simple and satisfying enough to feel like human instinct: the worst possible crime merits no less than the worst conceivable punishment’. Human life is sacred; there must be a deterrent mechanism in place that ensures that those violating that fundamental precept are punished.
    Well, did Tehelka ever asked the family who were killed in the Parliament attack, what it is to lose a family member? Did Tehlka ever ask the kith and kins of policemen who were killed in the blast? With such blind interpretation of truth and circumstance, I recommend avoid using chauvinism. Capital punishment embodies the worth and prominence placed upon the maintenance of the sanctity of human life. Any lesser sentence would fail in this duty. I have no doubt in my mind that you opposition stems not from any great principle but from some perception of political gain and democratic arrogance, which is ridiculous. States do not execute for such crimes.
    Rash of death sentences the author mentions. I am not sure if she is living in some abstruse thoughts or ever care to read the sentence as well. Your views are clearly biased, charlatan, superficial and full of obduracy. Shoma, you may want to debate capital punishment as matter of principle but don’t get eluded by the fact of the matter and be held enchained for your own delight.

  • Rameeza. A. Rasheed February 16, 2013 - 1:01 am Reply

    When we are in a position to recreate life, when error in a judgement is realised we have no right to end a life.Very soon the current president might create a record in cancelling mercy petitions against death sentences.

  • Ajit February 16, 2013 - 10:28 am Reply

    There are many flaws in the arguments presented by Shomaji.

    (1) First, she argues that the error-prone nature of death penalty decisions is strong ground for their abolition. An extension of this argument is: life imprisonment decisions are error-prone, so they need to be abolished too. Yes, life imprisonment decisions are reversible, but the suffering a prisoner undergoes until that decision is reversed, is not!

    (2) Second, she argues about the inherent subjectivity of what is “rarest of the rare” and states that as another ground to dismiss death penalties. A counter-argument is that this merely means that the laws need to be revised to give a clearer definition of “rarest of the rare”, not that the death sentence is to be abolished.

  • Ajit February 16, 2013 - 10:29 am Reply

    There are many flaws in the arguments presented by Shomaji.

    (1) First, she argues that the error-prone nature of death penalty decisions is strong ground for their abolition. An extension of this argument is: life imprisonment decisions are error-prone, so they need to be abolished too. Yes, life imprisonment decisions are reversible, but the suffering a prisoner undergoes until that decision is reversed, is not!

    (2) Second, she argues about the inherent subjectivity of what is “rarest of the rare” and states that as another ground to dismiss death penalties. A counter-argument is that this merely means that the laws need to be revised to give a clearer definition of “rarest of the rare”, not that the death sentence is to be abolished.

    (3) Third, when it comes to Afzal Guru, there can be no argument against the fact that an attack on the Indian Parliament falls under the “rarest of the rare” category. How many other attacks on the Indian Parliament (or the Parliament of any other country does one witness in a lifetime? So how can this come under the purview of subjectivity? Afzal Guru was given a fair trial, he had adequate chances to explain himself, and ultimately, this is a decision given by the Supreme Court, and upheld by Pranab Mukherjee. Kudos to him!

    (4) Fourth, it is quite presumptuous to blame the Indian society for being blood-lusty if they welcomed Afzal Guru’s or Kasab’s hanging. Not to forget to ask why should tax-payer’s money be wasted on feeding and taking care of such people lifelong?
    It is quite natural for the kith and kin of victims of such terror attacks to demand the harshest punishments for the perpetrators. See what is happening in the Nirbhaya case in Delhi, too. Nirbhaya’s father has demanded that all six accused including the juvenile be hanged. Are you calling him blood-thirst and abhorrent?
    (5) Fifth, consider the case of the Mumbai attacks of 2008. Out of the ten terrorists, nine were killed during clashes with Indian security forces. One was caught alive. If you argue against the death penalty for the tenth terrorist, are you also trying to urge the Indian security forces not to kill the nine during the conflict? Why should the nine deserve death if the tenth one deserves to live? And are you then taking responsibility for the lives of the thousands of innocent people who would have become victims of your altruistic arguments and expectations?

  • Jatt February 16, 2013 - 12:07 pm Reply

    It was a political murder. Afzal was murdered by Indian judiciary when he was not even involved with attack on house of gundaas (aka Parliament). Some one need to be slaughtered to please hindoo fanatics. It was not Afzal who was hanged, but it was image of Indian justice which was hung. Afzal became a martyr who will live for ever just like Shaheed Bhagat Singh. Freedom movement in Kashmir and Punjab will become stronger as we know that our future with India is similar to how we were burnt alive and raped in 1984 genocide against Sikhs. We will never forget 1984.

  • Ina February 17, 2013 - 4:51 am Reply

    When the last execution happened, newspapers were full of articles advocating the abolition of the death penalty. It was the execution of a rapist who murdered a fourteen year old. And I wondered at the vehemence of front page editorials – I did not believe that the public agreed with this point of view at all. I also wondered what was driving this agenda? Even the parents of the victim were apparently terorised and forced to move out of West Bengal- this was never investigated. India is not more modern than the US and we do not have the money to keep murderous criminals fed for life. In a democracy the majority opinion should matter and yes, in those cases involving women victims, death penalty should be applied extensively. Perhaps then violence towards women will reduce. Just as 498A has made a difference to women in divorce situations.

  • S V RAGHAVAN February 17, 2013 - 11:14 am Reply

    Afzal Guru, Kasab, Veerappans, Cold blooded rapists & murderers & their likes did not think before letting loose terror on innocent civilians & bravehearts. THEY DESERVE TO DIE.
    They get more brazen because of clever lawyers, corrupt policemen & a judicial system that rarely delivers justice.

  • Jacob February 17, 2013 - 8:35 pm Reply

    Shoma,I guess you do not consider the barbarity and pain that the victims go through when they are put with rape,murder and violence of all forms.You pick up the fundamental rights of these people to be important but not of the victims.This is misguided prioritising as I would call it.

    This was not expected from you.Think again!

  • Rajesh Kumar February 18, 2013 - 10:23 pm Reply

    India has been too lenient in executing murderers. It’s time to make a law where vicious murderers will automatically be on death row and life imprisonment will be the exception to the rule.

  • Srishti Agrawal February 19, 2013 - 12:15 pm Reply

    you said what should not be done…but please also mention the alternate then…how should these people be treated then??? what should be done with them…what punishment do they deserve then..according to you??

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