Friday, November 10, 2006

To Hang or not to Hang???

A young lawyer from Delhi, a Kashmiri militant and an Iraqi leader – nothing in common among themselves until very recently but now their fates are linked by the Hangman’s noose and a slender ray of hope. All of them have been convicted of different kinds of crimes and sentenced to the gallows. The circumstances relating to their punishment and their crime is quite different but most people agree with the verdicts decided in all the three cases ;what is not consensual is the sentence which has been given. These sentences have once again brought into focus the debate on capital punishments.

Afzal Guru, the militant, has been sentenced to death for his role in the attack on the Indian Parliament – an attack which not only disturbed the Indo-Pak peace talks (arguably) but also struck at the centre of India’s authority. It is a crime that we all agree deserves to be punished and other than his immediate family and supporters, there are no takers on his innocence (that aspect is of course beyond the scope of this post). Afzal has himself not asked for mercy; it is only the human rights groups have asked for clemency (wrongly reported in parts of the press as seeking pardon).

Santosh Singh, currently a lawyer in Delhi, had been stalking a young girl Priyadarshini Matoo for a long time before he finally raped and killed her. He was acquitted by a Sessions Court Judge saying that though he knows he’s guilty he cannot be punished due to the lack of evidence produced by the police and prosecution. The media uproar and the subsequent public outcry lead to the case being reopened at the higher court where he has now been convicted. He has been awarded “death penalty” for a crime which does not fit into the “rarest of cases”.

Saddam Hussain faced trial for his role in the slaughter of Shiites in 1982 in Dujail, in retaliation for the failed assassination attempt on him. The case was dogged by controversies right from the beginning. Two of Saddam’s lawyers were killed while the first judge quit. He was not given enough time and space to prepare his defence. Ironically, the conviction would have been welcomed had it followed proper legal and moral protocols and been conducted under the auspices of an international tribunal. The timing of the verdict – just before the Senate polls – and the judge’s conspicuous animosity towards the accused has also raised questions on the fairness of the trial.

The vast majority of democratic countries in Europe and Latin America have abolished capital punishment over the last fifty years, but United States, most democracies in Asia, and almost all totalitarian governments retain it. As per Amnesty International's latest figures, a total of 129 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 88 countries and territories have abolished the death penalty for all crimes, 11 countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 30 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions. Though 68 countries retain and use the death penalty, the number of countries which actually execute prisoners in any one-year is much smaller. In 2005, 94 percent of all known executions took place in China, Iran, the USA and Saudi Arabia (US and Iran on the same stage, interesting, right?)

Beyond the statistics, we need to ask ourselves what is the purpose of the death penalty?

--Is it to remove from society someone who would cause more harm?
-- Is it to remove from society someone who is incapable of rehabilitation?
-- Is it to deter others from committing murder?
-- Is it to punish the criminal?
-- Is it to take retribution on behalf of the victim?

Death is not merely a legal undertaking but has a strong social, religious and moral angle to it. It is not just priests or saints who look at birth and death as God’s handiwork; many of us also do so. There is also a strong religious notion that the act of suffering has a purifying effect on the human spirit allowing for salvation in God. The concept of death as a retribution for the sins committed is slowly losing ground. It has been argued that the person must be given an opportunity to repent for his sins and so death cannot be the way out. Is the idea behind a punishment to reform the person or to set an example in the society? Probably both and we need a more humane solution.

Death penalty supporters argue that it is a powerful deterrent to crime but there are no statistics to support this assertion. If death penalty were a proper deterrent, there would have been a reduction in crimes in such places and eventually their number would die out because the crime rate would have fallen to such an extent. On the contrary, these penalties seem to be on a rise in several countries, undermining the very rationale given for it. Death penalty sentences in India have been on the rise lately compared to the almost non-existent cases in the 60s and 70s. These are supposed to be given in the rarest of cases as per the Supreme Court ruling in 1983 but there’s a danger of the judiciary becoming “trigger free” in handing out capital punishments, especially under greater media glare (The Santosh Singh case is a clear example of that). Moreover, terrorist crimes, serial killer crimes or crimes of passion are not dictated by pure logic, so the rationale of using death as a deterrent does not work.

The next argument is one of infallibility of judgment and the irrevocability of the death sentence. The Liebman Report in 2000, concluding a 23-year study conducted by Columbia University, USA, found that 68% of all death sentences awarded were reversed due to serious legal error. In countries like India where the judiciary is over-burdened and cases drag on for years, would it be a surprise if the number of judicial errors is high. If a person is executed because of miscarriage of justice which is subsequently discovered the extinguished life cannot be restored. An innocent life lost due to callousness on the part of the law would be too heavy a price to pay.

Finally, at a slightly more emotional level, just think about the executioner who has to carry out the death penalty. It’s a profession which caries with itself the social stigma of killing someone but there are people who have to carry out this task. Leaders may take decisions but the final blood is in the hands of the executioner who has to act on behalf of the State. I strongly recommend readers to read Shashi Warrier’s soulful book “Hangman’s Journal” in which he brilliantly chronicles the agony that a hangman goes through when he has to carry out an execution. Similarly, Adoor Gopalakrishnan explores this theme in his movie “Nizhalkuthu”. In the words of Adoor, “The Hangman is conventionally considered to be one with no fine feelings. The public does not expect him to behave like a human being, the law wants him to be neutral, the State sees him just as an instrument of its operation.”

Should a civilized society use death as a tool to counter crime? It is arguable and when you consider the plight and sorrow of the victims, it is difficult to advocate the abolition of death penalty. It is an emotional issue but law must take a firm stance on this. In the Indian context, we could look at increasing the tenure of the life imprisonment since 12-14 years may seem on the lower side for extremely heinous crimes. The media must also be careful in its coverage of events. Repeatedly bombarding visuals of the crime and upping the ante for action can lead to public pressures on judiciary to hand out “populist” verdicts.

Is the Right to Life absolute? I certainly think so but then if I were to put myself in the shoes of Priyadarshini Matto’s father, would I feel the same??? Maybe yes or maybe no….


  1. Gallows for Afzal - Collective Conscience or Ignorance:

    In the sensational 13 Dec 2001, Parliament of India attack case, the issue of death sentence for Mohammed Afzal Guru should be analyzed within the boundaries of the existing law and not on the basis of so called collective conscience.

    The evidence of conspiracy against Afzal stands on his own testimony- he confessed that he brought one of the 5 men involved in the attack from Srinagar to Delhi and helped him buy a used car and on the recovery of explosives from his house, and most crucially, on records of cellphone calls to the five. But the evidence is open to doubt. The explosives recovery record is not watertight. The police couldn't explain why they broke into his house during his absence while he was in jail - when the landlord had the key.

    The cellphone record traced several calls from the five men to number 98114-89429. The police allegedly impounded the instrument from Afzal while arresting him in Srinagar. The instrument had no SIM card. So the only identity mark was its IMEI number, unique to each instrument.

    There are only two ways to find this tell-tale number: open the instrument, or dial a code and have the number displayed. But the officer who wrote the recovery memo said on oath that he neither opened nor operated the instrument. Besides, the testimonies regarding the date of purchase of the phone with a new SIM card ( December 4, 2001 ) and its first recorded operation ( November 6, 2001 ) don't match. The benefit of doubt heavily weighs in favor of Afzal.

    Afzal's conviction and sentencing violates cardinal principles of natural justice on the following 3 grounds:

    Firstly, the charge-sheet was against 12 persons. The masterminds were Azhar, Tariq Ahmed and Ghazi Baba. It is significant to note that they are Pakistanis. They have neither been arrested nor have they been tried. If Pakistan extradites them, then they shall escape the gallows. The Parliament was attacked de facto by 5 Pakistanis. They were responsible for the death of 9 members of the security forces. Afzal did not cause anyone's death, he did not injure anyone. He did not mastermind the attack. The Apex court of India has observed that there is no direct evidence of his involvement.

    Secondly, all the courts, including the Apex Court have acquitted him of the charges under Prevention of Terrorism Act ( POTA ) of belonging to any terrorist organisation.

    Thirdly, Afzal was denied a fair trial. The investigation was illegal. The courts noted that evidence was fabricated and he never had a lawyer who represented him. The Judge passed an order giving Afzal the right to cross-examine witnesses but it is a herculean task, even for a person with legal training but devoid of knowledge of criminal law. The provisions of the International Covenant for Civil and Political Rights ( ICCPR ) have been grossly disregarded.

    The Apex Court has held that, "the incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender."

    Collective conscience of a society whose members are probably unaware of the fact that Afzal a former Jammu & Kashmir Liberation Front ( JKLF ) man had surrendered and convinced others also to surrender.

    Collective conscience of a society, some of whose members allegedly attacked Senior Advocate Ram Jethmalani's office when he offered to defend Afzal. Its a pity that Afzal did not have the benefit of ace defence counsel Ram Jethmalani who would have torn the prosecution case apart and made the difference between life and death for Afzal.

    Collective conscience of a society, more than half of whose members, still do not know that Afzal is acquitted of all charges under the POTA.

    Collective conscience of a society which is still unaware of the fact that the dependents of victims of the attack have not yet been rehabilitated properly.

    Which ever way you look at it, its not collective conscience but collective ignorance.

  2. Dear Anonymous,

    Thanks for the insight into these aspects.Unfortunately,I am not too sure of the facts of the case and so I would not be able to add anything on the case,though I have read Arundhati Roy's article on the case, in Outlook. There are conflicting points of view on this and I would like to go by the Court's opinion on this.

    Of course, even if there's a slight iota of doubt, they should not look at capital punishment. Nevertheless,I do not think the collective conscience of the society requires to be met with a death sentence. We are not a blood thirsty nation that our conscience needs to be satisfied with the blood of someone on our hands.

    Of course, your point is that the conviction itself is in doubt. I do not think that I am not in a position to comment on that and would like to leave it to the judges to decide that.

  3. This article was really projecting a level-headed view about Death Penalty .
    I strongly agree that a person's fate should not be decided by another person .Even in worst cases ,atleast judgement like "Death Penalty" can be re-considered .

    The feelings about executioner was really emotional .

    Good Job, Pradeep !

  4. The way I see it death penalty is not so much a form of justice as state-sponsored torture- a ritual where the prisoner is forced to oscillate between the desperate hope of reprieve and the certainty of death, a ritual carried out in state's name. This leaves me with a question: what moral high ground does a state retain when it kills in the name of justice-what is the difference between this justice and the criminal act?

    There is no suggestion of any miscarriage of justice; simply that society is barbaric in inflicting torture which consists of letting a man gaze on the exact moment when he will die-what is physical pain beside its moral counterpart??

    It is an irrefutable fact that an execution cannot be reversed and the fallibility of all justice systems means that the execution of the innocent is inevitable. But unfortunately, the existence of death penalty provides society with a false impression of security.

    However, I've read that academics have found no consistent, credible evidence to suggest that the death penalty is a deterrent more than any other punishment. Texas has a high murder rate and also the highest number of executions in the USA, whereas since the abolition of the death penalty in 1975, Canada has seen a significant drop in murder rate. Whether the death penalty is performed before a baying crowd (in certain practices) or in shame, behind closed doors, it is ultimately a practice that brutalizes society-depraves and destroys all finer feelings and consequently all civic virtue.