Oct. 23
INDIA:
Is India moving towards abolishing death penalty?
It is rare in India for 2 VIPs - the president and the chief
justice-designate of the Supreme Court - to have publicly expressed their
views on a controversial subject such as the death penalty.
However, theirs may well be voices crying in the wilderness for it is
unlikely that any consensus on abolishing the extreme form of punishment
will be reached in the near future.
Even then, the views of President A.P.J. Abdul Kalam and Justice Y.K.
Sabharwal, who takes over as chief justice on Nov 1, will undoubtedly have
widespread impact on public opinion and may ultimately tilt the balance,
albeit slightly, in favour of abolition.
Justice Sabharwal has clarified, of course, that since the provision for
the death penalty remains a part of the Indian Penal Code, he will abide
by it. But his views as a citizen are against it.
However, how many other citizens will endorse the chief justice-designate
is open to question. It is possible that if a referendum is taken on the
subject, a majority will support the death penalty.
The reasons for this attitude are complex. But an explanation can be
attempted. For a start, a major political party - the Bharatiya Janata
Party (BJP) - favours this form of punishment. Its view is that since
India faces a grave threat from Islamic terrorism, the country cannot
afford to be lenient in meting out exemplary punishment.
Along with expressing preference for stringent security measures, like
keeping suspected insurgents in detention without trial for long periods,
the BJP also mock human right activists for being soft on anti-national
elements, laying more emphasis on the fundamental and legal rights of the
malcontents than on the difficulties faced by the security forces in
detecting and arresting them.
This disdain for the civil libertarians among sections of politicians and
citizens is the result not only of the prevalence of terrorism but also of
the subversive activities of the Khalistani secessionists in Punjab in the
1980s and of the Maoists who are still active in parts of Bihar,
Jharkhand, Orissa, Madhya Pradesh, Chhattisgarh and Andhra Pradesh.
Since these groups terrorize the local people into submission, few are
willing to testify against them if and when they are caught. As a result,
the routine judicial process is nullified. It was the failure of the
administration to convict these militants through the normal criminal
justice system which led to their killings by the police through fake or
staged 'encounters'.
The 'success' of such extra-judicial killings by the guardians of the law,
especially in Punjab where Sikh extremism has been virtually wiped out,
has undoubtedly bred an atmosphere where the death penalty is seen not
only as a legitimate but also the only weapon in the hands of the
authorities against militants.
>From the approval for such summary executions of the insurgents, it is
only a small step to support the death penalty for the ordinary criminals
as well. Not only that, it isn't only the murderers who are seen as fit to
be hanged, the same punishment has been seriously suggested by senior
leaders, mainly of the BJP, for other crimes, such as rape. And it is
worth noting that whenever they say this loudly at public meetings, they
receive loud cheers.
In all likelihood, therefore, President Kalam and Justice Sabharwal are in
a minority, though only a small one. Even then, their initiatives can be
seen as marking the beginning of a process of reappraisal at the highest
level about the pros and cons of the death penalty.
The president has already advised the government to consider pardoning a
majority of those on death row at present, whose mercy petitions are
pending before him. That any such decision would be highly controversial
was evident from the threat to commit suicide made by members of a
victimized family if the killer was pardoned.
It is obvious that there is no immediately likelihood of the death penalty
being abolished even if India now belongs to a dwindling number of
countries which favour this form of punishment.
According to Amnesty International, more than half of the countries in the
world have abolished the death penalty. While 121 countries have done away
with it, 75 still retain it.
Of the 121, 86 have abolished it for all crimes and 11 for 'ordinary'
crimes, retaining it for serious offences like murder. Liberia and Mexico
are the two countries which abolished it this year.
Besides, 24 countries are virtual abolitionists in the sense that although
the penalty remains in the statute book, no one has been executed in the
last 10 years.
Although the death penalty remains valid in India, it is applied in the
"rarest of rare cases", as the senior-most judge has pointed out. The last
execution took place in August 2004 when a person convicted of raping and
murdering a school girl in Kolkata was hanged. It was the 1st execution in
9 years.
Despite the lack of consensus on death penalty, the judiciary obviously
treats it very much as an exception, which is the 1st step towards
abolition.
(source: New Kerala)
