Capital question

In 1996, Ravji, a tribal from Rajasthan, was hanged for the murder of his pregnant wife and three children and attempted murder of his mother and neighbour. The Supreme Court, while upholding the death sentence, had said the court should consider only the nature of the crime and not the criminal. A year later, another convict, Surja Ram, was hanged citing the same reason.

Three years ago, 14 former Supreme Court judges met President Pranab Mukherjee, asking him to commute the death sentence on 13 convicts and admitting that the ruling in Ravji and Surja Ram's cases was flawed, though it was too late to make amends for them. Many years before Ravji's hanging, the Supreme Court itself had laid down that while deciding the sentence, the criminal should be the focus.

India is said to be a land of contradictions and when it comes to the death sentence, these contradictions play out in a macabre manner. Ajmal Kasab, an unlettered foot soldier of the larger conspiracy to “wage war against India”, was hanged in 2012 for the 26/11 Mumbai terror attacks. Yet, all the foot soldiers who planted explosives during the 1993 bomb blasts were spared the noose because they were the “arrows”, while Yakub Memon was hanged because he was the “archer”.

Memon's hanging on July 30 has drawn the media's attention to capital punishment, but the movement against it has been slowly gathering steam for several years now. “Death is supposed to be given for the 'rarest of rare' cases, according to the Supreme Court, but the court itself has been introspecting since a few years, saying that this guideline is arbitrarily applied,” says Mrinal Satish, associate professor, National Law University, Delhi.

There is no set theory for the basis of capital punishment in India, says Satish. While in the 1980s, the Supreme Court laid down that it should be meted out in cases where the court believes the person cannot be reformed, the theory hasn't guided all death sentences. “Parliament doesn't articulate its theory on death sentence. If it is revenge, well, then that is something India rejected long back,” says Satish. The contrariness of the death sentence in the land of the Mahatma makes the country's relationship with it an uneasy one.

Worse, data compiled by The Death Penalty Project shows that sentences are skewed against people from disadvantaged socio-economic background. Sample this: of 385 death sentences pronounced between June 2013 and January this year, 75 per cent of the convicts were from weaker sections of society.

In several recent judgments, the Supreme Court has tried to restrict the scope of the death sentence, says Shailesh Rai, policy adviser to Amnesty International India. Last year, it ruled that unexplained delay in disposing of mercy petitions caused mental agony over and above the condemned prisoner's punishment and could, therefore, be ground for commuting the death sentence. In one stroke, several condemned prisoners, including former prime minister Rajiv Gandhi's assassins, got off the noose. “Also, while prison manuals laid down that the condemned had to be physically and mentally fit at the time of hanging, it was not laid down in the law,” says Rai. “The Supreme Court, however, ruled that mentally ill convicts could not be hanged.”

And, after the cloak and dagger manner in which Kasab and Afzal Guru were hanged, the Supreme Court also ruled that there should be a minimum of 14 days between the rejection of the mercy petition and the hanging, and the condemned had a right to meet his family.

Memon may not have benefited from the movement against the death penalty, although politicians, leading activists and artistes, got together to plead mercy for him. However, he got a much greater opportunity to tap and exhaust every legal option. In an unprecedented move, the Supreme Court convened a special bench to sit at 3am, the judges being roused from their beds at short notice, to consider a last-minute petition filed by Memon's lawyer Anand Grover and a clutch of leading advocates. “The Supreme Court's concern for human rights of the condemned is evident from the late night hearing of Memon's latest plea, the first such in my knowledge. It is a tribute to the Supreme Court,” says former attorney general Soli Sorabjee. “One does feel sad when any human life is extinguished.”

In July, the law commission held a consultation on capital punishment, where politicians of different hues, from Shashi Tharoor of the Congress to Varun Gandhi of the BJP and Kanimozhi of the DMK, opposed it.

Political parties themselves are increasingly rejecting the death sentence. DMK leader M. Karunanidhi opposes it, as do the Left parties. D. Raja of the CPI moved a private member's resolution on July 20, seeking a moratorium on capital punishment till legislature abolishes it completely. “My resolution is unrelated to any incident or individual; it is based on a fundamental question of jurisprudence,” says Raja. “An eye for an eye, a tooth for a tooth cannot be the philosophy of Indian jurisprudence; it is not in conformation with evolving jurisprudence globally.”

Meanwhile, Amnesty points out that the deterrence scope of capital punishment hasn't really worked, even for terror, and that the world is moving away from the death rap. “This year, three more nations, Madagascar, Surinam and Fiji, abolished capital punishment,” says Rai. “And while Sri Lanka, a nation that has grappled with terrorism for decades, does have capital punishment in its statutes, it hasn't meted out a single death sentence ever since its independence.”