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Politics of punishment
The higher the penalty, the greater the rigor that the courts are expected to display in arriving at the decision. It is however hard to apply this principle, ironically enough, to the highest possible penalty: namely, death. This has been admitted by the highest court of the land over and over again, the last time being literally on the eve of Ajmal Kasab's hanging. In a verdict delivered on November 20, Justice Madan Lokur said that in capital offences "it has become judge-centric sentencing rather than principled sentencing".
But then, can this be said even about the decision to hang Kasab? If there was ever an open-and-shut case of capital crime, it was of course that of the only attacker to have survived the 26/11 massacre. So, whoever the judges were at the three levels of courts that had handled his case, it was most unlikely that any of them would have spared him the noose. It takes a crime of the magnitude of 26/11 to carve an exception to Justice Lokur's formulation that the recourse to the death penalty depended on the judge rather than any principle. There was still an element of uncertainty about the punishment awarded to Kasab. And that was whether he would be executed at all and, if so, when.
This uncertainty was demonstrated in Kasab's case by the utter secrecy and suddenness with which he was transferred to Pune and hanged there, early in the morning on November 21. It came as a complete surprise because even the President's rejection of Kasab's mercy petition had been kept under wraps for over a fortnight. A lot of high-level political decisions were involved in Kasab's execution, beginning with the home ministry's recommendation to the President to reject his mercy petition to taking a call on where he should be hanged to whether the hanging should take place so soon after Bal Thackeray's death.
Thus, whether it is about its pronouncement or about its execution, the decisions on death penalty are based more on politics than on law. Consider the manner in which the Kasab hanging triggered off a debate between the ruling and opposition parties on the longpending mercy petition of Afzal Guru, who had been sentenced to death in the Parliament attack case of 2001. Amid reports of the home ministry having recommended Guru's hanging as well, it is uncertain as to where exactly the file is pending as of today. Unlike Kasab, Guru was not among the actual attackers. If Guru's fate is still sought to be linked with Kasab's hanging, at least in the public discourse, it is yet another indication of politics being a predominant factor.
There is a wide range of ways in which the subjectivity of politics has shown its edge over the objectivity of law in the context of death penalty: None of the major political parties has taken cognizance of the Supreme Court's admitted inability to evolve a uniform standard for determining the "rarest of rare cases" in which the death penalty can be imposed. In recent years, the Supreme Court has repeatedly admitted the incongruity of weighing aggravating and mitigating circumstances to determine whether a convict fell in the rarest of rare cases. Since aggravating circumstances relate to the crime and mitigating circumstances relate to the criminal, the apex court's latest verdict said: "The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review. "
This was as close as the judiciary could have come to admitting to the arbitrariness inherent in most cases of death penalty. The horrendous implication is that death penalty is being imposed on standards that are not entirely justifiable or uniform. Yet, none of the political leaders participating in the death penalty debate has deemed it fit to call for a review of the very policy of retaining that irrevocable punishment in the statute book. The political silence on the churning within the judiciary on the efficacy of the death penalty testifies to the larger social indifference to this human rights issue.
Though Kasab's hanging is just the second in over a decade, India has never adopted a moratorium on the death penalty despite a global trend. NGO, When Dhananjoy Chatterjee was hanged in 2004, it was after a lapse of six years. Kasab's execution came after a lapse of eight years. The executions are so rare although courts, bound as they are by the law, have been every now and then awarding death sentences. The fault-line between the pronouncement of death sentence and its actual execution testifies to the increasing discomfort within the system. The very low frequency of executions was widely perceived as a tacit moratorium on death penalty. In fact, while responding to Kasab's execution, Human Rights Watch, a global NGO, lamented the lifting of the moratorium in India. This was despite the fact that India, defying a global trend, has consistently refused to support UN resolutions calling for a moratorium on death penalty. The last such instance was virtually on the eve of Kasab's hanging.
Kasab's mercy petition was disposed of ahead of those like Guru who have been awaiting the President's decision for far longer periods. Politics is writ large on the decision to give precedence to Kasab's mercy plea over that of Guru's. For, being a Pakistani national, and given the gravity and incontrovertible nature of his crime, there was little domestic support for Kasab. Afzal Guru on the other hand is seen by sections of Kashmiris as a symbol of India's alleged excesses in their state. This is particularly because of Guru's claim that he had a long record of being victimized by security forces in Kashmir and that it was at their instance that he had got mixed up with the conspiracy to attack Parliament. Whatever the intrinsic merits of the two cases, the extraneous factors made it easier for the government to take up Guru's case ahead of Kasab's.
Kasab was denied his right to challenge the President's decision although the execution of other high profile convicts has been stayed by courts even after their mercy petitions had been rejected. Ever since this right has been laid down by the Supreme Court in Kehar Singh's case in 1988, there have been several instances of death row convicts obtaining stay orders on their execution on various grounds even after the President had rejected their mercy petitions. The three Rajiv Gandhi killers, for instance, obtained a stay last year from the Madras high court on the ground that the President had decided their mercy petitions after an inordinate delay. The hush-hush manner in which Kasab was executed within days of the President's decision betrayed a political resolve to avoid the risk of a judicial stay on his execution. The political calculation clearly was that the government had everything to gain and nothing to lose by executing Kasab.
Balwant Singh Rajoana's execution has been stayed by the government although he never appealed against the death sentence or sought pardon. The killer of former Punjab chief minister Beant Singh is a rare death row convict displaying courage of convict. His principled refusal to ask for mercy forced the Centre to stay the execution on its own to avoid political trouble in Punjab.
No policy debate so far on replacing hanging with more humane forms of execution such as lethal injection. Although the Law Commission about a decade ago recommended the lethal injection as an alternative, the government has so far shown little inclination to make any reform on the death penalty front. Hanging is part of popular consciousness in India and there is no political will to replace that form of punishment, however barbaric.
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