On Monday, the Central Bureau of Investigation will demand the death penalty for Santosh Singh, the man who raped and murdered Priyadarshini Mattoo. At the same time, the mercy petition on behalf of Mohammad Afzal Guru, convicted in the 2001 Parliament attack case, is pending before President APJ Abdul Kalam, and presidential aides estimate it will take “three to four months” for the Government to examine the petition. Whatever happens, the cases have not just re-opened the debate in India on capital punishment, but also act as a mirror to India’s evolving society.
Kalam tried to initiate a political debate in October 2005, when he advised the home ministry to treat the case of a 69-year-old death row inmate on compassionate grounds. Law Minister HR Bhardwaj tried to follow it up in Parliament a month later, but it was lost in the din over the Volcker report. Today, the political debate has been re-ignited by the Afzal case, with battle lines drawn between the BJP demanding no mercy on one side, and the Left seeking life imprisonment instead. The Congress party is cautious, as its own chief minister in Jammu and Kashmir, Ghulam Nabi Azad, has sought clemency, even though media surveys show an overwhelming middle-class support for the execution.
“Abolishing the death penalty is a sign of the maturity of a society,” says psychologist Rajat Mitra, whose NGO Swanchetan has counseled eight death row inmates at Tihar Jail. Little wonder that 88 countries have done away with it. “Our society follows the principle of retribution rather reformation, arguing ‘what if the crime happened to your family member’,” he points out. Mitra says if India’s middle class is increasingly intolerant, it is because it has come together collectively for the first time: “What you see now is pent-up anger from the past coming out, demanding revenge in cases like the Jessica Lall murder.”
Professor BB Pandey, a former criminologist at Delhi University, feels this rightward lurch is a temporary phenomenon: “It will vanish with the economic development of the society.” Mitra agrees: “This is the first step in the consciousness becoming collective. As it matures, it will start looking at different sides of the debate, rather than the simplistic approach it takes now.”
There are those, however, who argue that the collective conscience cannot be ignored. “The State sometimes has to consider the sentiments of society to instill a sense of confidence,” says Supreme Court lawyer Ashok Arora. “And it is absolute indiscretion on the part of politicians to go to the President and ask him to accept or reject Afzal’s mercy petition.”
There are also other practical concerns. Prakash Singh, former chief of the BSF and the UP police, says the Parliament attack was no ordinary crime, and the execution is necessary to dispel the notion that India is a soft state. “In all matters where harsh decisions are called for, we opt for the soft option,” he says. “Who is Afzal? Is he a Mahatma Gandhi or a Bhagat Singh? Why so much debate? If you let him off, you will not just demoralise the security forces fighting terrorism, but the country as a whole.”
Complicating this is how the Afzal case is seen from the Valley. There was indignation that the hanging was scheduled during Ramzan, says former militant Firdous Syed; it typified the callousness of New Delhi towards Kashmir, the main cause for militancy during the past 17 years. This is why even staunch pro-India politicians like Farooq Abdullah warned of a terror backlash if the execution went ahead. And there is civil society, which has urged the government to follow the rest of the world in abolishing the death penalty. Amnesty International says New Delhi is becoming increasingly isolated on this issue. Pandey says civil society is conceding too much ground to the State. And in 2004, the President, while examining a mercy petition on behalf of rapist-killer Dhananjoy Chatterjee, was petitioned by three civil society groups to grant clemency. He did not.
In the end, does it deter crime? “By executing someone you are not solving the problem because it continues to exist even after the convict has been hanged to death,” says senior Supreme Court lawyer Kamini Jaiswal. “You hanged Satwant Singh for assassinating Indira Gandhi. For him, dying for a cause is nothing. Where is the deterrence? Someone still killed Rajiv Gandhi.”
Pandey points out that England abolished capital punishment completely in 1986. “They did this despite facing terrorism in Northern Ireland,” he points out.
Yet as Constitutional expert Subhash C Kashyap says, the Supreme Court had, in 1980, ruled the death penalty should not be imposed save in the “rarest of the rare cases”. “It has been specifically laid down that it can be awarded in extreme cases. Let it rest there.” He is on the side of those who feel that the State’s duty, to protect its citizens, means that this extreme punishment is sometimes necessary to maintain order in society.
The interpretation of the “rarest of the rare”, however, has varied, inviting criticism that the punishment is inconsistent. Such inconsistency militates against fairness, justice and due process. And anti-death penalty campaigners say a mistake cannot be undone, as an executed person cannot be brought back to life.
(Additional reporting by Aditya Sinha)