President Pratibha Patil recently rejected the mercy petitions of the three accused in the Rajiv Gandhi assassination case, the Khalistan militant Devinder Singh Bhullar and the Assam-based double murder convict Das. In doing so, Pratibha Patil has broken what journalist Manoj Mitta calls “an unstated moratorium” on awarding capital punishment. The courts, however, withheld all the executions – in two of the three cases following an upsurge of public sympathy -- citing unusual delay in dispensing justice as a reason.
From the time of president KR Narayanan, says Mitta, Indian presidents have shown a marked disinclination to send anyone to the gallows. Narayanan used the simplest possible method -- taking advantage of the lack of prescribed time limit, he simply sat on all the mercy pleas that came his way. (Quite in contrast, his predecessor, Shankar Dayal Sharma, rejected 14 mercy pleas.) President Kalam followed suit, rejecting only one mercy plea, that of child murderer Dhananjoy Chatterjee. Kalam also pointed out the lack of any guidelines in the government for declining clemency. Patil, since she became president, has commuted the death sentences of 19 convicts before rejecting the three recent high profile and highly emotive clemency pleas. The trajectory of these recent cases brings up afresh several questions – firstly, the desirability of the death sentence itself and its efficacy in decreasing the incidence of crime; secondly, the extent to which politicians should be allowed to influence both the courts’ decisions and the outcome of a clemency plea; and thirdly the inordinate delays that prisoners on death row have to suffer while waiting for decisions to be made about their fates.
Two of the cases in question have their roots in regional politics. There is a huge amount of sympathy, across party lines and affiliations for the three young men accused of being involved in the assassination of Rajiv Gandhi. Citing the mental anguish caused by the graphic descriptions in LTTE literature of atrocities against the Sri Lankan Tamils by the Indian Peace Keeping Forces, the CBI’s own investigating officer said that “It was enough to make anyone shed tears.” Popular sentiment against awarding the death penalty to the three accused was so strong that even anti-LTTE Jayalalitha was forced to move a resolution against the hanging. The three have been in prison awaiting justice for almost two decades.
Similarly in Punjab where the issue of Khalistan is capable of evoking derision and sympathy in equal measure, the case of Devinder Pal Singh Bhullar, accused of trying to murder a Youth Congress leader with a car bomb, has seen political rivals presenting a united plea against his death sentence. Bhullar was convicted by a split bench (one of the judges stated that there was simply not enough evidence to convict him) in 1995 and has spent almost 17 years in jail, much of the time in solitary confinement.
This overt political bargaining led J and K Chief Minister Omar Abdullah to wonder aloud on Twitter whether the public reaction would have been the same had the J and K assembly passed a similar resolution sympathetic to Afzal Guru… The immediate reaction to his tweet was more than adequate an answer.
Afzal Guru’s is one of 20 mercy petitions pending before the president. Many of them have been pending for decades. The case of accused double murderer Das is a case in point – the Guwahati high court intervened in his case citing the decade-long delay in dealing with his case. If the Supreme Court takes into account the inordinate delay in all the three cases currently in the news, and rules that this is ground for converting a death penalty to a life sentence, then it would have bearing on all pending mercy petitions – including the much-reviled Afzal Guru’s.
World opinion is still divided on the efficacy of the death sentence as a crime deterrent -- alhtough evidence seems to overwhelmingly point to the fact that countries that use capital punishment have no less crime than those who don't.
According to Amnesty International, more than two-thirds of the world’s countries have now abolished the death penalty. Ninety six have abolished it for all crimes, 9 for ordinary crimes, and 34 describe themselves as “abolitionist in law or practice”. India is one of the 58 countries that retain this contentious form of punishment. Public opinion in India seems currently to not be in favour of abolishing the death penalty and neither is the government. According to KTS Tulsi, vice chairman of the Law Commission of India, “India has found a perfect balance by retaining the death penalty as a deterrent, yet invoking it only in exceptional cases. … the deterrent effect is maintained…the possibility of erroneous execution is minimized.”
And yet, we need constantly to be reminded that justice is not written with black and white ink, that there are mistakes in human judgement and death is irreversible. We need to temper our certainty in the infallibility of the courts by thinking about efforts like the Innocence Project in the USA, where scientists and activists use DNA analysis to try to free ‘convicted’ prisoners including some on Death Row who insist that they are innocent – since 1989, over 250 accused have been proven innocent… We need to remember films like 12 Angry Men where one juror insists that the other 11 remember that they are playing with a man’s life… films like The Green Mile with its horrific scene of a botched execution and characters like Sister Prejean in Dead Man Walking who says: “If we believe that murder is wrong and not admissible in our society, then it has to be wrong for everyone, not just individuals but governments as well.”
Is the death penalty about to die?, Satya Prakash, HT, Sept 4 2011
Die another day, Manok Mitta, ToI, Sept 4 2011