By Praful Bidwai
Is Mr Pranab Mukherjee determined to become India’s “hanging President”? Going by his summary rejection of the mercy petitions of Ajmal Kasab’s and Mohammed Afzal Guru, among others, that seems to be the case. Both men were secretly hanged in violation of their fundamental right to a final appeal against the rejection. This grave breach of due process has been roundly condemned by eminent jurists, including two former Chief Justices of India, senior lawyer Fali Nariman and former Solicitor General Gopal Subramaniam.
Guru was executed without his family being informed. The jail authorities didn’t even bother to telephone his wife, and sent her a postal letter, which reached three days after the hanging. The execution and the breach of procedure have fuelled popular anger and disgust with the Indian state in the Kashmir Valley, with potentially disastrous consequences.
Mr Mukherjee was called upon to take a holistic view of the case, including the likely repercussions of hanging Guru, widely considered by Kashmiris to be innocent and a victim of the machinations of the Special Task Force, Jammu and Kashmir’s shadowy counter-insurgency outfit, and the Delhi police’s notorious anti-terrorist Special Cell. The President failed to exercise humanitarian discretion. He showed neither wisdom nor compassion, and acted like a petty bureaucrat, whose terrible misjudgment led to the snuffing out of a human life.
Consider the merits of the issue. It is nobody’s case that Afzal Guru personally committed murder or attacked Parliament House in December 2001. He was only accused of facilitating the attack. Yet, he was sentenced to death for murder (Section 302 of the Indian Penal Code), waging war against the state (Sec 121 and 121A), and criminal conspiracy (Sec 120A & B).
The sentence was clearly excessive and disproportionate to Guru’s alleged crime. But the Supreme Court upheld it in 2006 on the dubious ground that the shock delivered by the Parliament House attack to the “collective conscience of the nation” warranted it. In other words, someone must hang for it, even if they aren’t proved guilty beyond doubt. Parliament House, it said, is an “embodiment of sovereignty”. Therefore, attacking it is tantamount to waging war on India.
This is a literalist over-reading. By this criterion, the radical Dalit Panthers, who burned the Constitution in the 1970s, should have been hanged. Yet, the higher judiciary itself warned against such excess in 1951—vis-à-vis the Bihar police mutiny, during which the rebels fired on the Army.
Underlying Guru’s sentence is the equation of someone who conspires to commit a crime or abets it, with its direct perpetrator. This is repugnant and violates natural justice. Thus, Nathuram Godse’s brother Gopal was not hanged for Gandhi’s assassination, although he was fully complicit in it.
In the Machhi Singh case (1983), the Supreme Court spelt out death penalty guidelines. As a rule, a murderer must be sentenced to life; capital punishment must be reserved for “the rarest of rare” cases—where murder is committed in an extremely brutal, grotesque, diabolical or revolting manner, or to punish a particular caste or community, etc. None of this applies to Guru.
Guru’s execution represents a definite moral retrogression and erosion of liberal values, and a breach of legal reason. He was tried under the long-repealed Prevention of Terrorism Act, but sentenced under the IPC. POTA clearly distinguishes between committing a terrorist act resulting in death (punishable by hanging), and conspiracy in the act (for which the penalty is life imprisonment). It makes no sense to invoke a harsher provision selectively when a specific anti-terrorist law exists.
The trial court relied both on Guru’s own testimony—which showed that he, a surrendered militant, brought one of the five attackers (Mohammed alias Burger) from Kashmir to Delhi and helped him purchase a second-hand car—and on circumstantial evidence, which crucially hinges on the recovery of explosives from Guru’s house and records of his alleged cellphone calls with the militants.
The evidence is inconclusive. The police say they found explosives in Guru’s house when he was in their custody, but cannot explain why they had to break into it even though the landlord had the keys. The cellphone records were all traced to a Delhi number (9811489429), used on an instrument allegedly found on Guru when he was arrested. The instrument didn’t contain a SIM card; it was identified through the IMEI number (unique to each instrument).
But how did the police discover the IMEI number? This can only be done in two ways: either you open the instrument and read the number; or you dial a code to display it. But the concerned policeman said on oath that he neither opened the instrument, nor operated it. (Remarkably, Jammu & Kashmir didn’t have a cellular network in 2001.)
It is open to doubt whether Guru actually had the cellphone that was so crucial to establishing that he was in contact with the five terrorists. In the absence of clinching evidence that the number belonged to and was used by Guru, a deep, substantive conspiracy cannot be established.
There is another grey area. The police produced a dealer who deposed that Guru had bought the cellphone on December 14, 2001 with a new SIM card. But the police’s own records show that the number was in use since November 6. All this casts doubt on the circumstantial evidence, and warrants circumspection and caution in concluding that Guru was involved in a deep conspiracy.
Equally significant is Guru’s deposition of how he was drawn into secessionist militancy and crossed over to “Azad Kashmir”, but soon got disillusioned because he felt both the Pakistani and Indian governments were equally cynical in using Kashmiris to their narrow ends. As a surrendered militant, he was constantly harassed and subjected to extortion by the STF. He claims he was ordered by STF officers to escort Mohammad to Delhi. This account was never controverted.
Nor was his charge that he was tortured by the Delhi Special Cell’s “fake encounter specialist” Rajbir Singh into making a false confession to the police. Singh also threatened to eliminate his family. Singh gained notoriety as an indiscriminate murderer with more than 50 “kills” to his credit. A serial blackmailer, he amassed enormous wealth. Singh was killed in 2008 by a property dealer whom he had blackmailed. Guru’s allegation against him seems highly credible.
As if this wasn’t enough, Guru wasn’t allowed to choose a lawyer to represent him. The trial court imposed an incompetent and hostile lawyer upon him. She refused to meet him except in court and admitted incriminating evidence against him. Guru had no legal representation whatever when he was held guilty. This was a blatant violation of his fundamental rights. Such mockery of justice should have resulted in an overturning of the sentence, but for the obnoxious “collective conscience” proposition.
There is a larger lesson here. So long as the “rarest of rare” provision exists on the statute book, our courts will award the death penalty rather liberally. As many as 1,455 people were sentenced to death between 2001 and 2011—an average of 12 every month. That many of these sentences were overturned by the higher judiciary is no consolation. Some innocent people still get hanged or languish for long years in jail—itself a cruel, inhuman and degrading experience.
Miscarriage of justice is rampant wherever capital punishment exists. For instance, in the United States, as many as 142 people on death row have been exonerated since 1973 because they were found innocent on the basis of DNA tests or other evidence. Often, the sentencing is arbitrary like a “lottery”—witness the February 20 six-week stay on the execution of the Veerappan gang members—or discriminates against racial/ethnic/religious minorities. As former Chief Justice PN Bhagwati says, it’s largely the poor who are condemned to death in India.
A major reason for this is lack of proper legal representation, which the poor cannot afford. In some US states, one out four persons condemned to death is represented by state-appointed lawyers guilty of professional misconduct. Juror or judge misperception is yet another factor. (For details, see http://deathpenaltyinfo.org)
The time has come to abolish the death penalty altogether. The state does not give life and has no right to take it away. The idea of killing a human being is based on a primitive notion of revenge or retribution, which is not justice. It violates the foundational code of human solidarity and can only make for a deeply uncompassionate, trigger-happy society. No minimally civilised and decent society should tolerate capital punishment.
The sole seemingly plausible argument for capital punishment is that it might deter murder or terrorism. This is illusory. The European Union abolished capital punishment, but has a much lower murder rate than the US. In the US, abolitionist states had a 32 percent lower rate of homicide than retentionist states in 2007-11.
A good 141, or 71 per cent, of the world’s 198 countries have abolished capital punishment or stopped its enforcement. It’s high time India joined them. (IPA Service)