Is society’s bloodlust and abhorrence now meant to dictate and shape judgments in the highest court? Clearly, Pranab Mukherjee was better occupied as a finance minister befuddling corporate giants with retrospective taxes and checkmating his peers with adroit power games within the government. As President, his formidable intelligence does not seem to have found any worthy diversion. And so here we are, with a rash of death sentences: the new presidential pre-occupation. Ajmal Kasab; Afzal Guru; and as I write this, news coming in that he has rejected mercy petitions of four accomplices of the sandalwood smuggler Veerappan, convicted for killing 22 policemen in Karnataka. Almost certainly, there will be more in the days ahead.
There is a loud section of Indians delighted by this show of decisive muscularity. But, gratefully, there are others filled with deep misgiving and shame. By every civilised yardstick, India should have abolished the death sentence long ago.
No matter what the crime, how can any modern institution arrogate to itself the right to kill? What separates us then from earlier centuries when bloodthirsty crowds gathered to watch public executions and clap with glee? If barbaric “deterrence” is the rationale, we might as well go the full Taliban route: chop hands, stone, whip and behead.
But there are other urgent reasons why capital punishments must stop. There is, first, the enormous possibility of human error. Even a cursory look at the history of death sentences in India makes that painfully evident: trial courts that award death; high courts that overturn; a Supreme Court that reinstates. Or more starkly, trial courts that award death and high courts or the Supreme Court that acquit in the same case. Clearly, even at their finest, judgments can only be contingent things. At a stretch, societies can countenance a wrongly awarded punishment, but a wrongly awarded death?
There is, also, the question of whimsy. The courts themselves have been deliberating — rather chaotically — the randomness with which the “rarest of rare” test is applied before passing death sentences. In November 2012, for instance, Justice Madan Lokur set aside a death penalty in a murder case and regretted that such awards had become a matter of “judicial discretion”.
But clearly regret is not enough. In February, a Supreme Court Bench set aside death penalty for a man convicted of killing his wife and daughter on parole. He had been jailed for raping his minor daughter, but the court felt he was not beyond reform and commuted his sentence on humanitarian grounds. A few days later, though, another Bench sentenced a man to death for killing a seven-year-old boy. This time, the court felt the “rarest of rare” test held good because of the extreme distress the parents must have felt at the loss of their “only male child”. What can one say about judicial thinking that distinguishes the severity of crime — and the validity of a death sentence — based on the gender of the victim?
But things are likely to get darker and messier. Last week, while criticising such judicial discretion, Supreme Court judges Justice KS Radhakrishnan and Justice Dipak Misra went one step worse. According to media reports, they said, “while applying the rarest of rare test on cases, the courts must look into a variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes…” They also said, among other things, such decisions must be driven by the “perception of society” and the will of the people.
Such benchmarking threatens to take India back to the Dark Ages: Enter the era of the street. Is society’s bloodlust and abhorrence now meant to dictate and shape judgments in the highest court of the land? And when there is a divergence of opinion, who is going to judge what the “will of the people” is and who constitutes “society” and what its “perception” is? Are we going to hold referendums on every case? Or are judges meant to get a “feel” of the “pulse of the people” from those who make the most noise?
Afzal Guru’s shameful hanging refracts all these uncomfortable questions. The unseemly speed and secrecy with which he was hanged despite big differences in opinion; the fact that his family was not given time to prepare; the draconian and insupportable crackdown in Kashmir; the arbitrary detention of journalist Iftikhar Gilani; the cynical political second-guessing: this is not the India our Constitution promised us. This is a country whose fundamental rights are increasingly being replaced by fundamental restrictions. Guru’s death was meant to “assuage” the conscience of society. I’m a citizen of India, but like many others, my conscience was not assuaged by his death. What will the Supreme Court do with that conundrum?
And yes, let me state the obvious: I do strongly condemn the terror attack on the Indian Parliament.
