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Arbitrariness of capital punishment

 | March 1, 2013

In India, nobody knows how many innocent people have lost their lives to the hangman’s noose.

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When Afzal Guru convicted of attacking India’s Parliament in 2001, was executed some days ago, 13 men on the death row must have been gripped with fear.

Of these 13, there are four high-profile convicts. They are Balwant Singh Rajoana (who assassinated former Punjab Chief Minister Beant Singh) and the killers of India’s former prime minister Rajiv Gandhi, Murugan, Santhan and Perarivalan.

The cases of these men are up for a judicial review. And they have spent long years in prison, and if they are to be hanged now, it would be a travesty of justice.

In fact, Justice K T Thomas – who was part of a three-judge Bench of India’s Supreme Court – who had upheld a trial court’s verdict to hang the four Gandhi killers (including Nalini, whose sentence was later commuted to life term on the intervention of Rajiv’s widow, Sonia Gandhi), now feels that the noose would be unjust. He has urged a review of the capital punishment for these three men.

Justice Thomas – highly regarded in legal circles and outside – told The Times of India recently that it would be constitutionally wrong to hang Murugan, Santhan and Perarivalan, because it would then amount to “handing out two sentences for a single offence”.

He also said: “For any life imprisonment, every prisoner is entitled to have a right to get his case reviewed by the jail authorities (to determine) whether remission can be announced or not. Since the accused in Rajiv Gandhi case were death convicts, they underwent a long period of imprisonment without even having the benefit of life imprisonment… This appears to be a third type of sentence, something which is unheard of and constitutionally incorrect. If they are hanged today or tomorrow, they will be subjected to two penalties for one offence”.

He felt that his Bench ought to have examined the nature and character of the accused before sentencing them to death.

He agreed that there could have been an error of judgment. “It was only many years thereafter a Bench headed by Justice SB Sinha pointed out that without considering the nature and character of an accused, a death sentence should never be awarded. His judgment mentioned errors in previous Supreme Court judgments and that applies to the Rajiv Gandhi assassination case.”

This is exactly what those in favour of abolishing the noose have been shouting for years. That mistakes are possible and that no judgement is 100 per cent error proof.

In America, there are recorded cases of the wrong men or women being sent to the electric chair or jabbed with the poison needle.

In India, there is no such record, and in the absence of which, nobody knows how many innocent people have lost their lives to the hangman’s noose.

However, both the Rajiv murderers and sandalwood brigand Veerapan’s (who was killed by the police in a forest encounter) aides have had their death sentences stayed till another Bench of the Supreme Court hears their appeal.

This legal recourse was denied to Guru, and he was hanged in haste and in utmost secrecy. Even his wife and son could not meet him for the last time.

And like the Gandhi killers and the Veerapan aides, Guru had also spent a decade behind bars. Why then was he not given the same right which is now being offered to the Rajiv murderers and Veerapan aides?

This is another argument that strengthens the case for doing away with capital punishment. The sheer arbitrariness of it all.

And in a country like India with its mindboggling plurality of castes, communities and religions, with a police force that is not above corruption and a judiciary bogged down by an unimaginable number of cases, a death sentence may well be a huge mistake.

Above all, capital punishment is never a deterrent for crime. This has been firmly established.

Gautaman Bhaskaran is India Editor of FMT, and Chennai-based author, columnist and movie critic. He may be emailed at[email protected]


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