By Albert Thyrniang
Amidst scams, corruption, diesel hike, FDI, parties walking out and walking in of the UPA at the national level, the Congress-GNLA nexus, Champion’s election sound bite and the never ending Khyndailad beautification controversy at the state level, let us spare a thought for a more existential issue. Ajmal Kasab, the lone surviving Pakistani terrorist convicted of murder, conspiracy and waging a war against the Indian state had filed for presidential mercy petition about ten days ago. The latest news is that the Maharashtra government has rejected his petition and the governor has forwarded the same to the president of India. But for the eye catching happenings at the national level, the clemency appeal would have been a breaking news for the 24×7 news channels. Polarized debates would have been orchestrated by television anchors.
The uneducated gunman attacked the Tata owned Taj Hotel in Mumbai on November 26, 2008 killing more than 166 people. He was given a fair trial ‘exhausting’ all legal options that cost the country dearly in monetary terms. He was sentenced to death by the trail court in 2008. The Bombay High Court agreed with the sentence on 21 February, 2011. On 29 August, 2012 the Supreme Court further upheld the verdict saying that the 25 year old deserves death for his ‘rarest of the rare’ crimes
Kasab is the latest in the list of 29 criminals on death row seeking mercy from the president. In the recent past, cases had assumed communal overtone. The Tamil Nadu Legislative Assembly unanimously passed a resolution appealing the president for clemency for the late Prime Minister, Rajiv Gandhi’s killers. The Jamu and Kashmir lawmakers followed suit demanding clemency for Afzal Guru, convicted and sentenced to death for conspiracy in the parliament attack in 2001. Afzal’s execution scheduled for October 20, 2006 had to be stayed due to political volatility. Similarly Balwant Singh Rajoana, convicted for the assassination of Punjab CM Beant Singha was to be executed on 31 March 2012 but was stayed following protests from Sikh hardliners. In June 2012, President Pratibha Patil created a storm by commuting the death sentence of 35 convicts to life imprisonment. Rightly or wrongly, fortunately or unfortunately, for legal or non-legal reasons, the presidential pardon under article 72 of the constitution is highly controversial.
The question is to be asked is: should India abolish death sentence? The question is not easily settled. Proponents and opponents will offer sharp opposing views. There are arguments for and against. All is not just black or white. There is lot of gray in it. However, let me argue for the abolition of capital punishment.
First, most of the countries in the world-more than two-thirds have abolished death penalty in law or practice. Abolitionist countries are 140 presently while Retentionists are only 58. All European countries have abolished death penalty. Among the developed nations only the US Japan still execute people. Even within the US, states like New Jersey have abolished death penalty. Countries which want to be seen as civilized and progressive have abolished it. Countries which still hold on to death penalty are mainly communist and hard-line Muslim countries led by China, North korea, Iran, Irag, Saudi Arabia and others. Even countries like Combodia, Turkey, Kenya, Rwanda, Angola, Venezuela and Nepal have abolished death penalty for all crimes. Some countries which still retain capital punishment have not performed execution for many years. Several other countries have debated the abolition of death penalty in parliament. Developments on the use of the death penalty in recent years confirm the global trend towards abolition.
Second, international bodies are in favour of abolition. The United Nations on December, 2007 passed a non-binding resolution calling for a worldwide moratorium of the death penalty. Amnesty International, a human right movement which has branches all over the world opposes the death penalty “in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.” Numerous other pro-life organizations all over the world oppose capital punishment.
Third, death penalty is revenge by the state. It is based on the outdated principle of retribution: “eye for an eye, a tooth for a tooth and a life for a life.” Amnesty International has strong worded view, “It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman, barbaric and degrading punishment is done in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights” (Art. 3). Death penalty is the ultimate denial of human rights. No one, including the state, has right to take away the life of others. Even of hardcore criminals have the right to life. Although our first instinct is to inflict immediate pain on someone who wrongs us, but a mature society’s response should be more measured and rational. Our laws and criminal justice system should lead us to higher principles of respecting life even that of a murderer. Even victims’ families denounce death penalty as killing extends the chain of violence. Wrong cannot be set right by another wrong!
Fourth, death penalty is not a proven deterrent to future crimes. That it deters is an argument that does not hold water. Scientific studies overwhelmingly conclude that death penalty is, at best, no more of a deterrent than a sentence to life. In the US where death penalty is legal crime rates are 6 times that of Britain and 5 times that of Australia. The state of Texas has twice the murder rate than the state of Wisconsin, a state that does not have death penalty. Texas and Oklahoma have historically executed the most number of prisoners, yet in 2003, their murder rates increased – higher than the national average. Deterrence does not arise as frequently, murders are committed in moments of passion or anger or by persons who acted impulsively without thinking about the consequences. Life in prison will guarantee that ‘criminals’ don’t commit future crimes. Studies even show that death penalty has the opposite effect.
Fifth, death penalty offers no chance to the convict to reform himself/herself. It shuts the door for the convict to turn over a new leave. One big challenge for the society is to reform its errant members. Prison, if managed professionally, can reform convicts. There were reports recently that many prisoners in Assam have completed different courses through the correspondence route. These prisoners are also productive in their own ways in prison. Reforming a convict is a far better than baying for his blood. It serves nothing. It only perpetuates the vicious cycle of violence.
Last by not the least, judgments may be erroneous leading to wrong executions. “Frontline” (Aug. 25 – Sept. 07, 2012) in its cover story entitled, “A case against the death penalty” reported that 14 former eminent judges in a signed appeal sought the president’s intervention in commuting the death sentences of 13 convicts lodged in jails across the country. They informed that the 13 convicts were erroneously sentenced to death according to the Supreme Court’s own admission. The 13 prisoners are in real danger of being wrongly executed. The former judges revealed that Ravji Rao and Surja Ram (both from Rajastan) who had been wrongly sentenced to death were executed on May 4, 1996 and April 7, 1997. In the US since 1973, 123 people have been released from death row as evidences of their innocence emerged after being convicted. Innocent people were also executed. Between 1900-92, Michael Radlet, a criminologist, documented 416 cases of innocent people who were convicted. One third were sentenced to death and 23 of them were executed. This is the gravest miscarriages of justice. However extensive a trial may be it cannot be exhaustive. Evidences may still emerge even after the execution. It will be too late.
India proudly boasts itself as the second largest democracy in the world, a liberal, progressive and civilized nation but still keeps the cruel, inhuman, barbaric, uncivilized and degrading form of punishment. It’s a contradiction. Sooner than later India must abolish death penalty and replace it with life imprisonment!
The writer can be reached at [email protected]