The Supreme Court has stated that the death penalty is to be awarded only in the rarest case of exceptional depravity and brutality. But human judgement, as several recent court cases have revealed, is totally subjective
The death sentence awarded to Mohammed Afzal Guru, accused in the 2001 Parliament terror attack case, has brought the issue of capital punishment centrestage once again. A clemency petition by his family is pending before the President, and the execution has been stayed for the time being.
Recently, the Delhi High Court pronounced the death penalty on Santosh Kumar Singh for the murder of Priyadarshini Mattoo. The trial court had acquitted Singh. In the Parliament attack case, along with Afzal, S A R Geelani was sentenced to death by the trial court. The Delhi High Court acquitted Geelani, as did the Supreme Court. Today he is a free man.
In the Rajiv Gandhi assassination case, the trial court awarded capital punishment to all the 26 accused. The Supreme Court acquitted 19 of the accused -- it found them innocent of any crime.
The facts speak for themselves.
All the evidence for and against an accused individual is adduced before the trial court. The prosecution and police produce whatever material evidence they have to establish the guilt of the accused. The individual accused of a crime adduces witnesses and material to show that he is innocent. Generally, no additional evidence is produced by either side at any stage after the trial is over. Thus, it is on the very same evidence that the Supreme Court found that there was no material to show the culpability of 19 of the accused in the Rajiv Gandhi case, while the trial court directed that they be “hung by the neck till dead”. The evidence for acquittal and the death penalty in Geelani and Singh’s case remained the same.
The fallibility of human judgement cannot be more clearly demonstrated. The criteria formulated by the Supreme Court that the death penalty is to be awarded in the “rarest of the rarest” case of exceptional depravity and brutality ultimately depends on the judge’s feelings of moral outrage and lie in the realm of the totally subjective. In fact, the award of the death penalty to Nalini in the Rajiv Gandhi case, is illustrative of the role of subjectivity in the imposition of capital punishment. Justice Quadri, after observing that “the taking of life, when it cannot be given, is a divine function,” went ahead and awarded the death penalty to Nalini. Justice Quadri, while resolving his dilemma in favour of death for Nalini, observes that Rajiv Gandhi “was a young popular leader so much loved and respected by his fellow citizens”. The judge goes on to say that Nalini joined the gang of conspirators “only because she was infatuated by the love and affection developed for Murugan (A-3)”. These factors seem to have weighed strongly with the judge.
But what if a judge did not have such a high opinion of Rajiv Gandhi? In fact, it is possible that a judge may think that the crowning of Rajiv Gandhi as leader of the Congress and prime minister was the perpetuation of dynastic rule, which has no place in a modern democracy.
The presiding judge, Justice Thomas, commuted Nalini’s capital punishment to life imprisonment. The fact that Nalini had a small child born in captivity, and that the death sentence on Murugan, the child’s father, had been confirmed, weighed with the judge. Concern that an innocent child is not orphaned through judicial decree appears to have swung the balance in favour of life in Justice Thomas’ mind. However, this factor did not influence the other two judges on the bench who confirmed the death sentence on Nalini.
Unfortunately, judges are as subjective as any other human being. There can be no doubt that caste, class and gender biases operate in decisions to award capital punishment. Even to non-believers, the decision to order the cold-blooded execution of a human being seems like the arrogation of God-like powers by mere mortals. The South African Constitutional Court, while declaring the death penalty unconstitutional, reached the conclusion that “poverty, race and chance play roles in the outcome of capital cases and in the final decision as to who should live and who should die”. Studies the world over have found that the percentage of poor persons being awarded the death sentence is much higher. In the words of a condemned prisoner: “Them that have the capital, never get the punishment.”
The general arguments in favour of awarding capital punishment are those of deterrence and retribution. However, the onus of establishing the deterrent value of capital punishment is on those seeking to retain it. Till today, there are no scientific studies to show that the death sentence acts as a deterrent. Rather, the abolition of the death penalty in the princely state of Travancore, between 1947 and 1950, did not result in any proportionate increase in the number of murders. The hanging of Satwant Singh and Kehar Singh for the murder of Indira Gandhi does not seem to have deterred Rajiv Gandhi’s assassins.
As far as retribution is concerned, the less said the better. At most it may be understandable in a mob, anguished over the murder of a beloved leader, that screams, “Hang the villains!” It should have no role to play in the psyche of a judge who is not expected to be swayed by populist sentiment and on whom has been conferred the power of life and death over a fellow human being. The calculated and cold-blooded execution of a person convicted of murder does not serve any purpose. In the case of Nalini, as the majority of two out of three judges awarded capital punishment, it was the President who commuted the death sentence to life imprisonment.
A long illegal incarceration by the armed forces, a six-year-old child, and the fact that Afzal was neither the main conspirator nor actively participated in the attack should prompt the President to exercise the noble power of compassion and commute the death sentence to life imprisonment.
The global trend is towards abolition of the death penalty. Eighty-eight countries, including England, Germany, Brazil and Nicaragua, have abolished the death penalty as a means of securing human rights.
In the face of the contemporary reality of escalating violence and killings, the words of Bernard Shaw ring true: “And so to the end of history, murder shall breed murder, always in the name of right and honour and peace, until the Gods are tired of blood and create a race that can understand.” However, God may well turn out to be on the side of the bigger battalion, and blood, death and destruction. It is time for mere mortals to work towards the abolition of capital punishment in this country, as it annihilates the dignity and sanctity of human life.
InfoChange News & Features, November 2006
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