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Kasab hanging: Scheming India or restrained India?

The hanging of Mumbai terror convict Ajmal Kasab on Wednesday has catapulted India right into the centre of global death-penalty debates.

That India voted against a UN resolution on death-penalty in the General Assembly the previous day, while it was making preparations for Kasab’s execution, made the country look scheming and cold-blooded.

In the eyes of the world and human rights advocates, India sided with countries with terrible human rights records such as China, Iran, Iraq and Saudi Arabia.

But is India that bad?

The answer is certainly NO.

Along with its million contradictions, the country is seemingly trying to grapple with its dilemma on capital punishment as well. Faced with about 255,000 reported violent crimes in a year, including 34,000 murders and 31,000 attempts-to-murder, it wants to look tough,  but when it comes to the crux-situation, it palpitates and develops cold feet.

That just one person, alone in a massive mansion, the President, has the final say on the execution, makes it highly personal and eerie. After all, death penalty, as Amnesty International says, is cold-blooded murder and nobody wants to have blood on their hands. It can be as frightening as preparing the noose.

Ideally, India should join the majority of nations that have abolished death penalty. AP

Probably, that is why independent India has executed only 36 people in the last 65 years while America, a country with less than one-fourth of its population and stronger jails, has killed more people in just one year (2011). In India, more than 400 people have a death sentence on them and many of them could have disappeared from the face of the earth by now; but the country is happy to keep them in jails than sending them to the gallows. They certainly include terrible, remorseless criminals.

In fact, President Pranab Mukherjee, by picking Kasab’s case out-of-turn early this month, when 14 others were still in the queue ahead of the Pakistani mercenary for his clemency, has wily-nilly conveyed this point that he is in no hurry in clearing other files. His predecessor, in fact, had sat on them for quite some time and commuted 35 out of 39 petitions to life imprisonment not without reasons.

And the reasons cannot be anything but the human dilemma of choosing between life and death.

There are reports on Wednesday that Mukherjee has sent the file on Afzal Guru to the Home Ministry, but it’s very unlikely that he is going to take a decision on him soon with general elections round the corner.

India’s record of executions could have been higher by three more cases — that of Rajiv Gandhi assassins Murugan, Santhan and Perarivalan. But successive Presidents obviously didn’t want to say no to them and hence passed the files. By the time, the previous President Pratibha Patil decided not to give clemency, they had sufficient grounds to go to courts all over again — "an unwarranted, illegal and unconstitutional delay" in executing their death sentence.

Their original mercy petition was filed in August 2000 and the Presidential decision came after 11 years. Now, their case citing the delay is pending in Madras High Court since August 2011 as they continue with their higher education from jail while their supporters gather public opinion for them.

India’s noticeable departure from capital punishment has been more than obvious at the judicial level too. Death penalty is an extremely rare judicial incident in the country, which is awarded only in “rarest of rare” cases.

The landmark 1980 Supreme Court judgment (Bachan Singh vs State of Punjab, 9 May 1980), which declared as unconstitutional the death penalty against the complainant, had necessitated remarkable judicial wisdom and grounds in awarding death sentences. On Tuesday, a day before Kasab was hanged, the Supreme Court had noted that there was no uniformity in application of the criteria laid down by the 1980 judgment, making lower courts more careful in awarding death sentences.

The point is, barring in cases such as that of Kasab, all is not lost on the death-penalty front in India. India is not as hopeless as China, Iran or even Bangladesh. The country is certainly moving towards a no punishment-by-death situation wherein its courts might still continue pronouncing death sentences in “rarest of rare” cases, but the rest of the system might hold them back.

Ideally, India should join the majority of nations that have abolished death penalty. It should certainly absorb the sentiment behind the increasing support by the comity of nations to the UN’s campaign for a moratorium on the practice and its abolition.

Since 2007, more and more countries are jumping to the other side. If in 2008, 46 countries opposed the UN resolution against death penalty, by 2012, it has fallen to 39. In 2008, 34 countries had abstained; by 2012, it has risen by two more countries.

Punishment by death, as the campaigners argue is against the Universal Declaration of Human Rights and a “premeditated and cold-blooded killing of a human being by the state.” The question is “can the state kill?” (also the title of a widely quoted, including by the SC bench in 1980, 1969 book by KG Subramaniam).

As the 1980 SC judgement noted, “In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly.”

Death is death and it’s time that we stopped celebrating it and joined the growing tide of global opinion against it.

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