August 24
INDIA:
Death penalty: a retributive justice or restitution?
When the President, A P J Kalam, turned down Dhananjoy Chatterjees mercy
petition earlier this month, he is believed to have gone by the advice of
the Union home ministry and the attorney-general. Both felt that the grant
of pardon to the rapist-killer would suggest indifference to the public
outrage over the gravity of his crime. The law does not require the
presidential decree for death to be a speaking order nor is there any
provision to make it public.
Internationally, the trend has been to do away with the death penalty, but
the Indian government has been stoutly defending it at global conventions.
The home ministry, strangely, seems to have no data on the number of death
sentences given, or the number of executions carried out. Since the
government does not appear to have studied the issue dispassionately, its
resistance to the demand for an end to capital punishment seems to be more
of an emotional response.
The Law Commission did circulate a questionnaire, not to elicit opinion on
the death penalty but to find out the best method for executing it. This
despite Mahatma Gandhi having said, I cannot agree to anyone being sent to
the gallows. For those who do not agree with Gandhi, this is what a former
chief justice, Mr P N Bhagwati, had to say, Howsoever careful may be the
procedural safeguards, it is impossible to eliminate the chance of
judicial error.
Had Dhananjoy Chatterjee been a neighbours son, or an engineering student,
would his fate have been different? More people appear willing to answer
in the affirmative after the man has been hanged. Even the executioner,
who had been condemning the former security guard, appears to have been
moved by the quiet dignity with which the convict met his death. He wished
everyone well, reiterated his innocence and allowed himself to be hanged.
His last words, Aami nirdosh (I am innocent), will haunt some for months
to come, though the West Bengal Chief Minister will not be one of them.
Buddhadeb Bhattacharjee embarrassed many of his admirers by publicly
endorsing the rising cry of death to Dhananjoy.
His government shocked many by choosing to hang the convict on the eve of
the Independence Day, which happened to be the latters birthday as well.
As many as 65 death sentences were awarded in West Bengal between 1989 and
2001, according to the human rights groups. But the last time a man was
actually hanged in the state was 11 years ago. The state governments
unseemly haste, thus, appears to have been prompted as much by a desire to
play to the gallery as by a desire to cover up its own incompetence which
had delayed the execution for 10 years after the President first turned
down Chatterjees clemency plea in 1994.
Much of the public pressure over the last few months in favour of
executing Dhananjoy can be attributed to the 24-hour news channels. The
channels sought out people to ask if they favoured death for Dhananjoy.
Those asked possibly had no clue about the case; but briefed that the
former guard was convicted for raping and killing a teen-age girl, their
reaction was both predictable and suitably dramatic on TV. The newspapers
followed suit. But the media rarely questioned the quality of either the
investigation or the trial. The media went to town informing people when
the convict cried and when he broke into song, but it remained strangely
silent about the convicts version of events and the pleas made by the
defence during the trial.
Even more shocking, psychiatrists and psychologists, who had never
examined the convict, appeared on TV to declare that he was a dangerous
psychopath. There is unfortunately no law, or even a code of conduct,
against such serious breach of professional ethics. A sketchy interview
given by the trial judge who first sentenced Dhananjoy raised more
questions than it answered. He was quoted as saying that when the case
came before him, he was reminded of the Indira Gandhi assassination. Those
hired to protect her, he recalled, had committed an unacceptable breach of
trust, just as had the accused. It would appear that the judges mind was
made up even before the defence could plead the case.
The evidence against the convict, as recalled by the judge, was not just
circumstantial but also does not appear to have been conclusive. It is a
moot point whether, in the absence of DNA tests and eyewitness accounts,
the evidence was so definitive as to call for the death penalty. The
Supreme Courts inconsistency has further complicated the debate over the
death penalty, already dogged by accusations of inept police investigation
and errors on the part of the judiciary. In one case, TV Vatheswaram
versus State of Tamil Nadu, the apex court quashed the death sentence.
It also commuted the death sentence to life imprisonment in the case of
Chandranath Banik, who was sentenced to death after being found guilty of
murdering his daughter-in-law in his home, right in the heart of Kolkata,
and calmly hosting a party the same day. Banik, the court felt, had spent
too long waiting for the execution and his prison term was, therefore,
punishment enough.
It is by no means clear why a similar logic was not extended to Dhananjoy.
Is it because rich culprits can afford more articulate lawyers and the
poor cannot? It is such inconsistencies which have attracted jibes that in
India there is one hundred per cent reservation for the poor in death
sentences. A list was forwarded to the president of those sentenced to
death in which apparently not one belonged to either the affluent classes
or the upper castes.
In Harbans Singh vs State of Uttar Pradesh and others, the President
pardoned one of the accused, Kashmira Singh, while another, Jeeta Singh,
was executed and the sentence of a third, Harbans Singh, was reduced to
life imprisonment. Commenting on this case, Y V Chandrachud, who was the
chief justice at the time, commented, The course which this case has taken
makes a sad reading. 3 persons were sentenced to death by a common
judgment and, regretfully, each one has eventually met with a different
fate. The apex court has also confirmed the death sentence of four
agricultural labourers from Bihar who were accused, along with four
hundred other people, of attacking an upper-caste village, Bara, in Gaya
district, and killing 35 villagers. How could these four poor men be
deemed more responsible than the others who attacked the village?
Only the poor, illiterate and inarticulate appear vulnerable to the
capital punishment; the rich get away with milder punishment even after
committing similar crimes. In the USA, where all 12 jury members are
required to agree on the death penalty, a 23-year-long study by Columbia
University revealed that 68 per cent of all death sentences awarded were
reversed due to serious legal errors. An Amnesty International study has
found that 12 per cent of all persons executed in the US were later found
to be innocent in the light of newly uncovered evidence.
If this can happen in a country where both the judicial system and
forensic science are arguably the most advanced, it is frightening to
think of the situation in India. Even cases of genocide tried at the
International Court of Justice do not invite the death penalty these days,
says Mr Fali Nariman, the eminent jurist.
Hopefully, the execution of Dhananjoy Chatterjee will make the campaign
for abolishing the capital punishment stronger. The cause of retributive
justice, or even restitution, will be better served if life imprisonment
is made co-terminus with life and convicts are made to work in socially
useful projects.
(source: Opinion, K N Pandey, The Nahvind Times)
