The secretive and stealthy hanging of Ajmal Kasab in
Pune’s Yerwada Prison yesterday, 21st November, 2012, brings to an
end the legal process involved in trying Kasab for the brutal assault by
trained terrorists from across the border on Mumbai, the commercial capital of
India which left 166 persons dead.
The Mumbai carnage of November 2008, more popularly
abbreviated to a single term `26/11,’ constitutes one of the most heinous and
deliberate attempts in recent years to cause mass mayhem and terror in India.
Kasab was the only member of the terrorist team sent from Pakistan apprehended
alive; he was caught on film diabolically using his modern automatic weapon in
a cold blooded fashion, killing numerous people. The hanging, and the trial and
legal proceedings which preceded it, admittedly complied with
existing laws which permit death penalty, and cannot be faulted as such.
While it may be argued, as many do that the hanging will help in an
`emotional closure’ to the families of victims of 26/11, there are others who
point out that other key issues still remain to be addressed. Families of
victims in specific, as also other concerned citizens, have pointed out that
Kasab was only a foot soldier and not the mastermind, who still remain at
large.
We cannot also lose sight of the fact the
reality that the backdrop of the 26/11 incidents is also the festering
and unresolved internal conflict inside Kashmir, which provides an easy emotive
tool for demagogues to indoctrinate and turn youth to become cold blooded
`jihadi’ killers. To them, the execution will not be a
deterrence.
The extensive legal process ending with the
hanging of Kasab is pointed out as a triumph of the of `rule of law process’ in
India. In the same breath this is also contrasted to the lack of such situation
in neighbouring Pakistan. This discourse is however very worrisome; it
borders on `triumphalism’ on the one hand, and on the other, it amounts to an
attempt to `avenge’ or seek `vengeance’, and `eye for an eye and tooth for a
tooth’ mentality, which worldview has been rejected as dangerous amongst a
majority of 110 countries worldwide which have prohibited death penalty in
their countries.
Such triumphalist discourse is also worrying for it
hides behind emotive terminology very harsh truths of failure and miscarriage
of justice in other incidents of mass killings that have occurred in India. The
`cry for justice’ still remains a silent pouring of helpless anger in the
hearts and souls of thousands of families of victims in incidents like
planned and cold blooded slaughter of over 3000 Sikhs during the anti-Sikh
riots of 1984, the massacre of hundreds of Muslims in the wake of the Babri
Masjid demolition in 1992-93 (which ironically occurred in Mumbai also), the
2002 post-Godhra anti-Muslim carnage in Gujarat which saw over 2,000 Muslims
killed and thousands more rendered homeless and more recently in Kokrajhar in
Assam. A stark reality is the cynical manipulation and subversion of police investigation
by ruling political parties and the executive to help masterminds and
perpetrators escape the clutches of the law.
In the surcharged emotional atmosphere in the wake of
Kasab’s hanging, even raising questions about the usefulness of hanging
Kasab is considered to be `traitorous’, unpatriotic and anti-national. We
in the PUCL nevertheless feel that this is a moment in our nation’s history
when we need to pause and ponder, and reflect on the values that we, as a
nation, should uphold, particularly relating to crime and punishment, justice
and equity. We need to be conscious of the fact that a nation consumed by
outrage and filled with a sense of retribution easily confuses “punishment and
revenge, justice and vendetta”. We, as a nation, need to begin a dispassionate
public debate on the death penalty without judgmental, indignant, righteous or
moralist overtones.
PUCL has always taken a principled stand against the
death sentence as being anti-thetical to the land of ahimsa and non-violence,
as constituting an arbitrary, capricious and unreliable punishment and that at
the end of the day, the type of sentence that will be awarded depends very much
on many factors, apart from the case itself. PUCL and Amnesty International
have published a major study of the entire body of judgments of the
Supreme Court of India on death penalty between 1950-2008 which unambiguously
shows that there is so much arbitrariness in the application of `rarest of
rare’ doctrine in death penalty cases that in the ultimate analysis, death
sentence constitutes a `lethal lottery’.
It may not be out of context to highlight that just
two days before Kasab was hanged, on 19th November, 2012, the
Supreme Court of India pointed out to the fact that in practice, the
application of `rarest of rare cases’ doctrine to award death penalty was
seriously arbitrary warranting a rethink of the death penalty in India.
It is also
well recognised now that there can never ever be a guarantee against legal
mistakes and improper application of legal principles while awarding death
sentences. Very importantly, the Supreme Court of India in the case of `Santosh
Kr. Bariar v. State of Maharashtra’, (2009) has explicitly stated that 6
previous judgments of the Supreme Court between 1996 to 2009 in which death
sentences were confirmed on 13 people, were found to be `per
incuriam’ meaning thereby, were rendered in ignorance of law. The
Supreme court held that the reasoning for confirming death sentences in theses
cases conflicted with the 5 judge constitutional bench decision in Bachan
Singh v. State of Punjab (1980), which upheld the constitutionality of the
death sentence in India and laid down the guidelines to be followed before
awarding death sentence by any court in India.
It should
be pointed out that of the 13 convicts awarded death sentence based on this per
incuriam reasoning, 2 persons, Ravji @ Ramchandra was hanged on 4.5.1996
and Surja Ram in 5.4.1997. The fate of the others is pending decision on their
mercy petitions. In the meantime a group of 7 - 8 former High Court judges have
written to the President of India pointing out to the legal infirmity in the
award of death sentences to these convicts and seeking rectification of
judicial mistake by commuting their death sentences to life imprisonment. A
very troubling question remains: how do we render justice to men who were
hanged based on a wrong application of the law?
It is for
such reasons, amongst others, that PUCL has long argued that it is extremely
unsafe and uncivilised to retain death penalty in our statutes.
It will be
useful to refer to the stand on death penalty taken by 3 of India’s foremost
leaders of the independence struggle.
Mahatma Gandhi said,
“I do regard death sentence as contrary to
ahimsa. Only he takes it who gives it. All punishment is repugnant to ahimsa.
Under a State governed according to the principles of ahimsa, therefore, a
murderer would be sent to a penitentiary and there be given a chance of
reforming himself. All crime is a form of disease and should be treated as
such”.
Speaking
before the Constituent Assembly of India on 3rd June, 1949, the
architect of India’s constitution, Dr. Ambedkar, pointed out,
“... I would much rather
support the abolition of death sentence itself. That I think is the proper
course to follow, so that it will end this controversy. After all this country
by and large believes in the principles of non-violence, It has been its
ancient tradition, and although people may not be following in actual practice,
they certainly adhere to the principle of non-violence as a moral mandate which
they ought to observe as dar as they possibly can and I think that having
regard to this fact, the proper thing for this county to do is to abolish the
death sentence altogether”.
Jayaprakash
Narayan wrote more poignantly that,
“To
my mind, it is ultimately a question for the respect for life and human
approach to those who commit grievous hurt to others. Death sentence is no
remedy for such crimes. A more humane and constructive remedy is to
remove the culprit concerned from the normal milieu and treat him as a mental
case ... They may be kept in prison houses till they die a natural death. This
may cast a heavier economic burden on society than hanging. But I have
no doubt that a humane treatment even of a murderer will enhance man’s dignity
and make society more humane”. (emphasis ours).
PUCL calls
upon all Indians to use the present situation as a moment of national
reflection, a period of serious dialogue and discussion on the values and
ethics which we as a nation of Buddha and Ashoka, who epitomised humane
governance, dharma and ahimsa, should accept and follow. The best tribute we
can pay to the 166 persons who lost their lives due to the 26/11 Mumbai carnage
is to rebuild the nation in a way that equity and justice, dharma and ahimsa
prevails; in which there is no soil for discrimination and prejudice, and in
which all Indians irrespective of caste, community, creed, gender or any other
diversity, can live peacefully and with dignity.
We firmly believe that mercy and compassion are key values of
a humane society, which are also recognised in the Indian Constitution. We also
hold that abolishing death penalty is not a sign of weakness. Rather it is a
stand which arises from a sense of moral authority. It is when law in tempered
with mercy that true justice is done. Bereft of mercy our society would be
impoverished and inhuman; mercy is quintessentially a human quality, not found
elsewhere in the natural world. Excluding a fellow human being from the
entitlement to mercy will make our society more blood thirsty, unforgiving and
violent. We owe a duty to leave a better and less vengeful world for our
children by curbing our instinct for retribution. That way we become a more
humane and compassionate society. Recalling Rabindranath
Tagore’s vision in the `Gitanjali’, let us re-make India into a `haven of
peace’ in which future generations of Indians will rejoice and flourish.
Prof. Prabhakar
Sinha
National President,
PUCL
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