The death sentence cannot be a lottery

Omar Abdullah is not wrong. Had the Jammu & Kashmir State Assembly passed a resolution recommending the commutation of the death sentence of Afzal Guru, convicted for his role in the conspiracy to attack Parliament in December 2001, the Bharatiya Janata Party— and a certain muscular TV channel— would have gone apoplectic. As it is, a mere tweet by Mr Abdullah posing that question has them frothing and foaming in the mouth.
Indians have this self-image of themselves as non-violent people. Never mind that we are like everyone else, and in certain circumstances—related to caste, religion and patriarchy— even more blood-thirsty than anyone else. It is another matter that the  bloodlust behind the strident calls for carrying out death sentences in some terrorism cases seems born out of frustration with our inability to tackle terrorism.
The Muslim Afzal Guru, who was involved in the Parliament House attack case, seems to be a specially chosen target of the Sangh Parivar, which is not particularly worked up about the efforts to commute the death sentences of Perarivalan, Santhan and Murugan, the Tamils convicted for the conspiracy to assassinate Rajiv Gandhi, in which 19 other people were killed, or of Devinder Pal Singh Bhullar of the Khalistan Liberation Force, responsible for the bombing outside the Youth Congress office  in Delhi that killed 9 people.
 
Commutation
The decision of the government to reject the mercy petitions of these three sets of people convicted of terrorist crimes has triggered a debate on death sentence in
the country.
The protagonists are divided along somewhat messy lines. For the sentence, are people who believe that all terrorists ought to hang, regardless of the level of their individual complicity in an act of terrorism. Another set of people are keen to have Afzal Guru hang, but are indifferent to the other two cases; then there is a small and active minority of activists and scholars who oppose the death penalty on principle. And finally we have the government which has cynically allowed the situation to drift to the point where any of these executions will have fraught consequences.
Our courts, on the other hand, have generally been very conservative in dishing out death sentences which they say must be awarded only for the “rarest of rare” cases— just what is “rare” is a hugely subjective matter, of course. Around the world, the death penalty is becoming rare.
The one big problem in doing away with the death penalty in India, is that the alternative to the penalty, though termed “life imprisonment”, usually means a ridiculous term of just 14 years in prison.
A person whose death sentence is upheld by a high court or the Supreme Court can usually avoid it by two means. The first is through commutation procedures built into the Indian Penal Code and the Code of Criminal Procedure. The  second is through the clemency powers of the President and  Governors, who exercise it through their respective council of ministers. In none of these cases is the judicial standard of adequate evidence or proper trial etc applied.
Since the commutation of a death sentence almost automatically means that the convict will serve an imprisonment of just 14 years many a sadistic killer and psychopath walks free when his death sentence is commuted, because he has already served the term during the pendency of his trial and appeals. This mostly arbitrary exercise of executive power ends up victimising the victim doubly—first their life is taken away arbitrarily, and then their killers are given a token sentence.
The fact that the executive has the right to commute a judicial sentence argues against the separation of powers, a fact that has been referred to many times by the apex court. But what has not been adequately stressed is the arbitrary manner in which this power is applied. There have been several instances of killers being pardoned in states because of their political connections.
 
Rare
The frustration of the courts was obvious in the Aloke Nath Dutta and others versus the State of West Bengal case, where a Bench of Justices S B Sinha and Dalveer Bhandari noted that “different criteria were being adopted by different benches of this Court” on what constituted “rarest of rare” and since no sentencing policy as such had been decided on, they decided in the case to commute the death sentence of the convict who had murdered his brother.
On the same day, an Amnesty International study pointed out, another Bench of Justices Arijit Pasayat and S.H. Kapadia confirmed the death penalty for the convict in the Bablu aka Mubarik Hussain versus the State of Rajasthan case which involved a man who had murdered his wife and four children. This is what led AI to comment that despite efforts at legislative reform and reform minded jurisprudence, “the death penalty continued to be a lethal lottery.”
Let me make a voluntary disclosure. I am not against the death sentence. On the contrary, I believe it should be used more often, especially in cases of brutal pre-planned murder involving the helpless, women and children. I certainly think that the perpetrators of the Manoj-Babli case in which a khap panchayat-led mob killed a young couple who married within some alleged gotra lines should have been hanged. But the Punjab and Haryana High Court which commuted their sentences to life imprisonment clearly thought otherwise.
 
Policy
I could be persuaded to join the cause of abolitionism if those who want to do away with the death penalty take up the issue of the wider reform needed in sentencing policy. Primary among these is to ensure that the lottery doesn’t work in favour of those who are well connected and those who, on commutation, find their death sentence magically transformed to a paltry 14 years’ imprisonment.
Judicial punishment must contain a mix of three elements—rehabilitation, retribution and deterrence. In some cases, especially in the matter of sex offenders and psychopaths, rehabilitation is simply not possible. Heinous crime requires stringent punishment and there are some people who the state must keep locked away for their natural life.
 In other cases, there is a need to balance all the elements. But this should be a matter for the judicial system to decide, not for some Council of Ministers or bureaucrats in the Union Home Ministry.
The Supreme Court has acknowledged the need for this balance, though only indirectly in the Murli Manohar Mishra aka Swami Shraddhananda case. In commuting his sentence, the court realised that this monstrous killer could well walk away having served 14 years. So it specified that life imprisonment in his case would mean imprisonment for his natural life and that he would not be entitled for any commutation. There have been other cases, too, where the court has specified sentences beyond the 14-year rule because it has witnessed the misuse of the commutation power by the state. The Court has, in the Kiranjit Kaur case, questioned the right of the governor to pardon three convicts.
The eight week stay on the execution of the three Tamils in the Rajiv case, and the Tamil Nadu state assembly resolution calling for the commutation of their sentence, pose new issues before the country. A presidential rejection of a clemency petition does not permit any room for further appeal. The issue is now in the political arena and it will have to be resolved there, but it cannot be done without reference to the other two persons on the death row. And that has its own consequences.
Mail Today September 1, 2011