No Parliamentary Discussion on India's new criminal laws

 

On the Death Penalty for Kasab

M J Akbar in the Times of India

There is only one way to be born, but many ways to die. Both remain a cosmic mystery despite the best efforts of atheists to reduce them to banality. That is where the similarity ends. 

Birth is a symphony of joy. Death orchestrates a range of atonal emotions. Grief is only one of the many narratives surrounding death, and it is contained. Even those who have lost an anchor of love recognize that food must return to the table of lament. Religion offers its rationale; as in the Quranic verse, from God we come, to God we go, a belief shared by all the Abrahamic faiths. But human beings do not leave all death to the will of God. They kill, singly and collectively. The individual does so for criminal reasons; the state in the pursuit of justice.

The first story in the Bible deals with the complicated morality of knowledge, and its primal consequence, birth and the flowering of earth. The second story is about murder. Cain, son of Adam and Eve, kills his brother Abel out of jealous fury. Murder, in any dimension, has remained a magnetic fact ever since. Societies have invested huge repositories of finance and intellect in weapons; man has split the atom and mobilized the biological germ in his inventive efforts to kill in as many ways as possible. There is a vast literature of death, from warfare disguised as history to the less-than-innocent pleasures of a murder mystery novel. In either case we hope to reach calm through turbulence through the road map of justice. An eye for an eye establishes the balance of fear. Deterrence cuts through the knot that cannot be unraveled. It is not necessarily equal retaliation, but it must be effective retaliation. The dead cannot be resurrected but the killer must be found and punished.

War was kept exempt from the rules of murder. The Romans understood the arbitrary nature of the battlefield and introduced decimation: a victorious general could send a ruthless signal by lining up prisoners of war and dispatching every tenth man in the queue. It was one man playing dice with another man's destiny. The only thing that could be said in its favor was that it was better than the reverse, nine dead to one alive. But as the savagery of even war crossed limits that were inconceivable by the 20th century, war crimes were invented. They were widely advertized as evidence of civilization. Then terrorism came along. We still have not secured rules for this brutality.The progress of civilization is a bundle of questions in search of an ever-elusive ideal. We have left the monarch's absolute authority over life and death behind. Gone are the days when theft of a sheep was a hanging offence. Most of the world has either adopted a rule of law where evidence must be produced and confirmed, or is moving towards it. Reform has even come to religious law: no one cuts off the hands of a thief anymore. If theft can be eliminated by lesser punishment, then the purpose is served.But one area where reform has paused for intense debate is in capital punishment. The argument for abolition is persuasive in the genteel atmosphere of liberal values. Systems of justice are human, and therefore prone to error or bitter degrees of bias. Far better that ten guilty persons are declared innocent at the end of a trial than one innocent person dies.

This begs a question. Should the generosity of civilized behavior extend to those who have deliberately, maliciously chosen to be barbaric? We understand different grades of murder. The crime of passion is even celebrated in high drama or poetry. But the terrorist and the tyrant emerge from the same seed. Both gorge on the blood of innocents. This is all the more reason why we should define both with moral and intellectual rigor. To do less would be to dilute their evil.Abolition of death penalty for them would create an equivalence that cannot be sustained in theory or practice. 

Darkness is the best friend of a terrorist; stealth and deception his preferred strategy for it helps him escape through the fog of theories spun by pseudo-analysts. When, occasionally, a terrorist works in the open he still craves for the mantle of a jurisprudence created for civilians who have abandoned civility. Liberal nations like India do not deny this privilege to their worst enemy. But India cannot withhold justice when a judge has made his call on terrorism. Such complacence would weaken the liberal safety net to the point of disintegration. Ajmal Kasab's mentors are safe, beyond the reach of Indian law. Kasab could not be allowed to escape the rope of Indian justice.

A Time For National Reflection

The secretive and stealthy hanging of Ajmal Kasab is a moment in our nation’s history when we need to pause and ponder, and reflect on the values that we, as a nation, should uphold, particularly relating to crime and punishment, justice and equity

PEOPLES UNION FOR CIVIL LIBERTIES (PUCL)

The secretive and stealthy hanging of Ajmal Kasab in Pune’s Yerwada Prison on  21^stNovember, 2012, brings to an end the legal process involved in trying Kasab for the brutal assault by trained terrorists from across the border on Mumbai, the commercial capital of India which left 166 persons dead.

The Mumbai carnage of November 2008, more popularly abbreviated to a single term `26/11,’ constitutes one of the most heinous and deliberate attempts in recent years to cause mass mayhem and terror in India. Kasab was the only member of the terrorist team sent from Pakistan apprehended alive; he was caught on film diabolically using his modern automatic weapon in a cold blooded fashion, killing numerous people. The hanging, and the trial and legal proceedings which preceded it,  admittedly  complied with existing laws which permit death penalty, and cannot be faulted as such.  While it may be argued, as many do  that the hanging will help in an `emotional closure’ to the families of victims of 26/11, there are others who point out that other key issues still remain to be addressed.  Families of victims in specific, as also other concerned citizens, have pointed out that Kasab was only a foot soldier and not the mastermind, who still remain at large.

We cannot also lose sight of the fact the  reality that the backdrop of the 26/11 incidents is also the festering and unresolved internal conflict inside Kashmir, which provides an easy emotive tool for demagogues to indoctrinate and turn youth to become cold blooded `jihadi’ killers. To them, the execution will not be a deterrence.

The extensive legal process  ending with the hanging of Kasab is pointed out as a triumph of the of `rule of law process’ in India. In the same breath this is also contrasted to the lack of such situation in neighbouring Pakistan.  This discourse is however very worrisome; it borders on `triumphalism’ on the one hand, and on the other, it amounts to an attempt to `avenge’ or seek `vengeance’, and `eye for an eye and tooth for a tooth’ mentality, which worldview has been rejected as dangerous amongst a majority of 110 countries worldwide which have prohibited death penalty in their countries.

Such triumphalist discourse is also worrying for it hides behind emotive terminology very harsh truths of failure and miscarriage of justice in other incidents of mass killings that have occurred in India. The `cry for justice’ still remains a silent pouring of helpless anger in the hearts and souls of thousands of families of victims  in incidents like planned and cold blooded slaughter of over 3000 Sikhs during the anti-Sikh riots of 1984, the massacre of hundreds of Muslims in the wake of the Babri Masjid demolition in 1992-93 (which ironically occurred in Mumbai also), the 2002 post-Godhra anti-Muslim carnage in Gujarat which saw over 2,000 Muslims killed and thousands more rendered homeless and more recently in Kokrajhar in Assam. A stark reality is the cynical manipulation and subversion of police investigation by ruling political parties and the executive  to help masterminds and perpetrators escape the clutches of the law.

In the surcharged emotional atmosphere in the wake of Kasab’s hanging,  even raising questions about the usefulness of hanging Kasab is considered to be `traitorous’, unpatriotic and anti-national.  We in the PUCL nevertheless feel that this is a moment in our nation’s history when we need to pause and ponder, and reflect on the values that we, as a nation, should uphold, particularly relating to crime and punishment, justice and equity. We need to be conscious of the fact that a nation consumed by outrage and filled with a sense of retribution easily confuses “punishment and revenge, justice and vendetta”. We, as a nation, need to begin a dispassionate public debate on the death penalty without judgmental, indignant, righteous or moralist overtones.

PUCL has always taken a principled stand against the death sentence as being anti-thetical to the land of ahimsa and non-violence, as constituting an arbitrary, capricious and unreliable punishment and that at the end of the day, the type of sentence that will be awarded depends very much on many factors, apart from the case itself. PUCL and Amnesty International have published a major  study of the entire body of judgments of the Supreme Court of India on death penalty between 1950-2008 which unambiguously shows that there is so much arbitrariness in the application of `rarest of rare’ doctrine in death penalty cases that in the ultimate analysis, death sentence constitutes a `lethal lottery’.

It may not be out of context to highlight that just two days before Kasab was hanged, on 19^thNovember, 2012, the Supreme Court of India pointed out to the fact that in practice, the application of `rarest of rare cases’ doctrine to award death penalty was seriously arbitrary warranting a rethink of the death penalty in India.

It is also well recognised now that there can never ever be a guarantee against legal mistakes and improper application of legal principles while awarding death sentences. Very importantly, the Supreme Court of India in the case of `Santosh Kr. Bariar v. State of Maharashtra’, (2009) has explicitly stated that 6 previous judgments of the Supreme Court between 1996 to 2009 in which death sentences were confirmed on 13 people, were found to be `per incuriam’ meaning thereby, were rendered in ignorance of law. The Supreme court held that the reasoning for confirming death sentences in theses cases conflicted with the 5 judge constitutional bench decision in Bachan Singh v. State of Punjab (1980), which upheld the constitutionality of the death sentence in India and laid down the guidelines to be followed before awarding death sentence by any court in India.

It should be pointed out that of the 13 convicts awarded death sentence based on this per incuriam reasoning, 2 persons, Ravji @ Ramchandra was hanged on 4.5.1996 and Surja Ram in 5.4.1997. The fate of the others is pending decision on their mercy petitions. In the meantime a group of 7 – 8 former High Court judges have written to the President of India pointing out to the legal infirmity in the award of death sentences to these convicts and seeking rectification of judicial mistake by commuting their death sentences to life imprisonment. A very troubling question remains: how do we render justice to men who were hanged based on a wrong application of the law?

It is for such reasons, amongst others, that PUCL has long argued that it is extremely unsafe and uncivilised to retain death penalty in our statutes.

It will be useful to refer to the stand on death penalty taken by 3 of India’s foremost leaders of the independence struggle.

Mahatma Gandhi said,

“I do regard death sentence as contrary to ahimsa. Only he takes it who gives it. All punishment is repugnant to ahimsa. Under a State governed according to the principles of ahimsa, therefore, a murderer would be sent to a penitentiary and there be given a chance of reforming himself. All crime is a form of disease and should be treated as such”.

Speaking before the Constituent Assembly of India on 3^rd June, 1949, the architect of India’s constitution, Dr. Ambedkar, pointed out,

“… I would much rather support the abolition of death sentence itself. That I think is the proper course to follow, so that it will end this controversy. After all this country by and large believes in the principles of non-violence, It has been its ancient tradition, and although people may not be following in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as dar as they possibly can and I think that having regard to this fact, the proper thing for this county to do is to abolish the death sentence altogether”.

Jayaprakash Narayan wrote more poignantly that,

“To my mind, it is ultimately a question for the respect for life and human approach to those who commit grievous hurt to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case … They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man’s dignity and make society more humane”. (emphasis ours).

PUCL calls upon all Indians to use the present situation as a moment of national reflection, a period of serious dialogue and discussion on the values and ethics which we as a nation of Buddha and Ashoka, who epitomised humane governance, dharma and ahimsa, should accept and follow. The best tribute we can pay to the 166 persons who lost their lives due to the 26/11 Mumbai carnage is to rebuild the nation in a way that equity and justice, dharma and ahimsa prevails; in which there is no soil for discrimination and prejudice, and in which all Indians irrespective of caste, community, creed, gender or any other diversity, can live peacefully and with dignity.

We firmly believe that mercy and compassion are key values of a humane society, which are also recognised in the Indian Constitution. We also hold that abolishing death penalty is not a sign of weakness. Rather it is a stand which arises from a sense of moral authority. It is when law in tempered with mercy that true justice is done. Bereft of mercy our society would be impoverished and inhuman; mercy is quintessentially a human quality, not found elsewhere in the natural world. Excluding a fellow human being from the entitlement to mercy will make our society more blood thirsty, unforgiving and violent. We owe a duty to leave a better and less vengeful world for our children by curbing our instinct for retribution. That way we become a more humane and compassionate society. Recalling Rabindranath Tagore’s vision in the `Gitanjali’, let us re-make India into a `haven of peace’ in which future generations of Indians will rejoice and flourish.

Sd/-

Prof. Prabhakar Sinha, National President, PUCL
Dr. V. Suresh, National General Secretary (Elect), PUCL

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Also read The hangman's justice

The hangman’s justice

 

For many years now, The Hindu has opposed the death penalty on principle — often in the face of intense public disapproval. We oppose it for ordinary killers and mass murderers, communal pogromists as well as terrorists like Muhammad Ajmal Amir Kasab. Ever since that traumatic night we now denote by the veiled abbreviation 26/11, Kasab has justifiably been the face of evil for millions of Indians. He took part in a monstrous plot against the people of India and Mumbai, killed innocent people with abandon, and showed no remorse for his actions. It is no surprise, therefore, that his execution Wednesday morning has been greeted with approval across the country. No loss of human life, however despicable the individual might have been, ought to be a reason for celebration. Instead, this should be a time of national reflection: reflection about crime, about punishment and about that cherished bedrock of our republic, justice. For several reasons, the hanging of Kasab is at most a crude approximation of this quality, more closely resembling an act of vengeance. Kasab was neither the architect of 26/11 nor its strategic mastermind; the men who indoctrinated and controlled him remain safe in Pakistan, where most will likely never see the inside of a courtroom. The haste to hang Kasab makes even less sense when others guilty of hideous terrorist crimes have secured deferment of their sentences because political lobbies acted on their behalf — among them, the assassins of Prime Minister Rajiv Gandhi and Chief Minister Beant Singh of Punjab. It is also a sobering fact that criminals responsible for claiming more Indian lives than Kasab did — among them, the perpetrators of countless communal riots — live as free men. Not one of these things excuse or mitigate Kasab’s crime. But they do make it imperative to ask: is the hangman’s justice the only kind we can conceive of? 

The arguments against the death penalty are well known. There are pragmatic ones — in this case, that Kasab could have provided valuable testimony in future trials of yet-to-be-arrested 26/11 perpetrators. There are moral and technical ones; even in the United States, with its highly-functional criminal justice system, new forensic techniques have shown dozens of innocent men were executed, though this argument does not apply to Kasab whose guilt is proven well beyond even unreasonable doubt. The most compelling argument, however, is this: the application of the death penalty is, as the Supreme Court itself acknowledged earlier this week, increasingly arbitrary. Capital punishment has become, as the medieval philosopher Maimonides many centuries ago warned it would, a matter of “the judge’s caprice”. It is also simply not true that capital punishment is integral to fighting terrorists. The absence of the death penalty in, say, France and the United Kingdom has not made these two nations softer in their ability to combat terror than the U.S. The grief of 26/11 was personal for many in this newspaper; like others, members of staff grieve for lost friends. Yet, the horror of 26/11 ought not stop us from dispassionately debating the need for the death penalty.

Abolish The Death Penalty in Cricket; I Mean the LBW

by Giffenman

In modern times many societies have abolished the death penalty as a form of punishment even for the most heinous crimes. One reason is that the judicial process is based on convincing a jury that such a crime was committed. Therefore one could say that a jury’s verdict is an opinion about an event and not a fact. I’d like to suggest that an LBW decision in cricket is the death penalty for a batsman and like the judicial process is based on opinion and not on fact. Hence it should be abolished.

When an appeal of LBW is made the umpire has to determine ‘whether the ball would have gone to hit the stumps if its progress had not been impeded by the batsman’s leg’. This is a point of opinion and not a point of fact.

Even in modern times where the form of pre-emptive justice is proving increasingly popular, no ‘suspected terrorist’ is given the death penalty because s/he may have been plotting a crime. The reason being that a crime has not been actually committed. Thus juries are loath to condemn such individuals to the gallows.

Similarly in the case of an LBW decision, since the ball has not hit the stumps there is no way one can be sure that the ball would have hit the stumps if unimpeded. It may have hit the stumps 99% of the time but there is no way of being sure. Hence a batsman in my view should not be declared out since that is akin to awarding the death penalty for a crime not committed.

Those opposed to this idea will immediately say removal of the LBW decision will be an incentive to batsmen to use their legs to prevent the ball from hitting the stumps. My suggestion is that every time the batsmen is found LBW in the opinion of the umpire and the DRS then he should be docked 25 runs. But a death penalty, i.e. an LBW, is too harsh a punishment for an event that has not occurred.