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Is UPA trying to abolish death penalty through backdoor?

by R Jagannathan  Jun 22, 2012 18:04 IST

#Afzal Guru   #Death row   #Pratibha Patil   #Rajiv Gandhi   #WhyNow  

Is the UPA government moving towards abolition of the death penalty by stealth? Or is the milk of human kindness overflowing in President Pratibha Patil just as her term is ending?

Media reports suggest that Patil has been in a death sentence commutation jamboree for the last two-and-a-half years, having pardoned 30 death row inmates in quick succession.

However, what has raised eyebrows is that many of those inmates are accused of some of the most horrific crimes – from rapes and brutal murders.

The President has pardoned 30 inmates on death row recently . Reuters

Says a report in India Today: “No President in India's history has used the power to pardon death row inmates as President Patil. She has granted a record of 30 pardons in the last 28 months, over 90 percent of India's total death sentences pardoned ever. But 22 of those relate to brutal multiple murders and gruesome crimes on children, the worst of what human beings can do to one another.”

One of those pardoned, Sushil Murmu, beheaded a child and even his own brother for ritual sacrifices. Another, like Shobhit Chamar killed all male members in a family and two children, and then apparently celebrated the crime.

The big question is this: why?

What was the need to rush into so many pardons in the second half of your term when in the first half you did nothing?

The answer has to be sought in events that happened in 2008-09-10, when the BJP started raising questions about the delay in hanging Afzal Guru, who was convicted for the 2001 attack on parliament, and especially after the 26/11 terrorist attack in Mumbai.

The issue was further politicised last year and this year, when Tamil Nadu, Punjab and Jammu & Kashmir politicians wanted their own favourite death row prisoners shown clemency: people convicted for the killing of Rajiv Gandhi (Murugan, Santhan and Perarivalan), former Punjab CM Beant Singh (Balwant Singh Rajoana), and the parliament attack (Afzal Guru).

Matters came to a head again in 2010, when new Home Minister P Chidambaram disclosed that he was awaiting the Delhi government’s recommendations on Afzal Guru – apparently 16 reminders had been sent but Chief Minister Sheila Dixit was unresponsive (Read here). She cleared the hanging just days after this matter became public.

This is the political context in which Pratibha Patil’s death commutation spree should be seen. A weakened UPA government may be in no mood to carry out any of these politically-sensitive executions, however warranted they may be.

So let’s be clear: this is not Pratibha Patil’s work. This is the central government’s. Under article 72 of the constitution, the president has absolute power to grant any kind of pardon or clemency to any convicted person. But this can be done only on the advice of the government and the home ministry.

So, in a more fundamental sense, these are as much UPA’s clemencies as Patil’s. This is what leads us to the question of whether the government is trying to speed up clemencies in order to do the same for the more politically-loaded death sentences.

If this is the right interpretation of President Patil’s actions, it would be a tragedy, for it would prove once again that under political pressure, the government will pardon anybody – from rapists to killers to terrorists or assassins.

It would be comforting to believe that India is moving towards a more humane crime and punishment system, but this would be a wrong assessment for the simple reason that the country has done nothing about the tribulations of undertrials, living conditions in jails, or any such thing.

The courts, if anything, has only added to the confusion. Last year, the Madras High Court stayed the execution of Santhan, Murugan and Perarivalan (who were convicted in the Rajiv Gandhi assassination case) due to the enormous delays in carrying out their hangings. Their death penalties were confirmed 12 years ago, and this fact alone establishes a strong case for clemency.

In a previous judgment, the Supreme Court has said that clemency pleas should be disposed of within three months of a death penalty being confirmed. Failing this, it would amount to mental cruelty to the condemned person and his or her relatives.

As Firstpost noted at that time, there is no reason to keep delaying the execution of death sentences. And no need to use delays as a reason for clemency either.

First, the main issue is not about whether the death penalty is a good thing or not. It is about the failure of the executive to do its job. Both the NDA and UPA governments have been sitting on mercy petitions for years for lack of political courage. Pratibha Patil may be clearing these cases now with a vengeance, but all reprieve petitions are going only one way: towards commutation.

Second, the argument that it is cruelty to keep a prisoner on death row for so long is only partially valid. It may be true that the convicts suffered mentally. Their families certainly must have suffered from not knowing whether their convicted relatives (son, brother, father) would be reprieved or not.

But what about the lack of closure for the victims’ families? In the case of the three convicted in the Rajiv Gandhi case, we are not talking about his family alone – but those of the 17 others killed with him in that suicide-blast at Sriperambudur in 1991. Why is the agony of a killer’s relatives presumed to be greater than that of the families of the people they killed? If delay in carrying out a death sentence is agony for the former, it is doubly so for the victims.

Third, the ban-the-death-penalty-wallahs seem to wake up only when someone is actually on the threshold of a hanging. This is opportunism of a different kind. One need not doubt their sincerity, but trotting out the same old arguments against death penalty just when justice is at the point of being done is simply not on.

The time to campaign against the death penalty is when nothing is at stake. By raising the hopes of relatives and encouraging politicians to ride piggy-back on their genuine concerns, they too have become a party to prolonging the agony of the condemned. The campaign against the death penalty can – and should – be ratcheted up once the current backlog of executions is completed, so that it can be held in a less charged atmosphere.

But even here, things are not black and white. The proponents of the death penalty favour it for two reasons: one is that it serves as a deterrent. The other is that it is a form of punishment, or retribution, for a grave wrong done to someone or some people.

The opponents call capital punishment a form of “judicial murder” that is not civilised. It must be abolished in all cases. Certainly, there is some weight to this argument, too.

The middle position is that since death is awarded only in the rarest of rare cases, there is nothing wrong with the occasional death penalty. We can live with this “uncivilised” law since it is used only rarely.

A fourth idea to consider is who should be involved in the mercy petition. Currently, it is the home ministry that processes them. But what if we introduce the victims, too? What if they, too, had the power to grant clemency? Now that would be a genuinely human thing to do: forgiveness.

Sure, the families of the victims may not feel charitable or all-forgiving. But in case they do, the pressure on politicians would be less.

But, in any case, Patil’s sudden entry with a broom to clear the death row backlog looks suspicious. Perhaps she is clearing the way for the UPA to pardon one and all – including those convicted for terror.

This is like abolishing the death penalty through the back-door.

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