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Still hanging fire

India’s policy on the death penalty is awaiting review. A hanging may appear to provide ready catharsis after a terror attack but it will not solve the real problems. Gopalkrishna Gandhi writes.

india Updated: Sep 09, 2011 23:30 IST
Gopalkrishna Gandhi
Gopalkrishna Gandhi
Hindustan Times

India’s policy on the death penalty is awaiting review. A hanging may appear to provide ready catharsis after a terror attack but it will not solve the real problems.

A meticulously-researched monograph (2009) by lawyer and independent researcher Bikram Jeet Batra tells us that between 1948 and 1949, when C Rajagopalachari was Governor General, his office received 384 mercy petitions from or on behalf of persons sentenced to be executed for committing murder. Out of these, Rajaji commuted 66 to life imprisonment and rejected 318. He went into the cases closely, often asking for clarifications from government.

Among those petitions he rejected, sending the petitioner to the gallows, was the one for Nathuram Godse.

It is important to know what the victim in ‘the instant case’, thought of the death sentence. In 1940, Gandhi was asked: “Do you consider death sentence to be against your principle of ahimsa?” He answered: “I do regard death sentence as contrary to ahimsa. Only he takes life who gives it. All punishment is repugnant to ahimsa. Under a State governed according to principles of ahimsa, therefore, a murderer should be sent to a penitentiary and there given every chance to reform himself. All crime is a kind of disease and should be treated as such.”

Would the history of crime and punishment not have been changed — and for the better — if the assassin of a man who held that view had been sentenced to life imprisonment?

Gandhi’s third son, Ramdas Gandhi, certainly believed so. He wrote to Rajaji, asking the Mahatma’s associate to save Godse from the gallows. I have not seen Rajaji’s reply to Ramdas Gandhi but have the impression that Rajaji explained to Ramdas Gandhi that while he recognised the Mahatma in the victim, the law did not. He also said that pardoning the killer of a Mahatma would be unfair to the killers of those who were not regarded as Mahatmas. And so, he could not interfere with due process. The new Indian State had not claimed it was running the country according to the principles of ahimsa. It acknowledged the Mahatma to be its moral lodestar, but had not recognised him as its law-maker. Godse was hanged in November 1949.

President R Venkataraman held office from 1987 to 1992. Far fewer files with government’s recommendations on petitions for commuting death sentences into life imprisonment came to him than they had to Rajaji. This showed that the death sentence was being awarded with the ‘rarest of rare’ formula in mind. Under him, ‘death sentence’ files were processed by his able secretaries, S Varadan ( 1987), Prem Kumar (1987-89) and P Murari (1989-92). They did not pass through his joint secretary, that was me. And so I had little idea of how such files were dealt with by him, until it came to the Kehar Singh, an accused the Indira Gandhi assassination case. I do not know what was said on the file but I could see that beneath his stoic manner, Venkataraman was coping with pressure from people who pleaded for clemency for this man. The Dalai Lama was among those and I was asked to meet him to receive the message. He appealed for commutation in the spirit of ahimsa. Venkataraman absorbed the message exactly as Rajaji had, Ramdas Gandhi’s. Kehar Singh was hanged in 1989. President Venkataraman was a sharp ‘Madras lawyer’, who saw things legally and scrupulously, if unadventurously.

KR Narayanan was not a lawyer but a sharp political scientist who had been trained in diplomacy. Becoming President eight years after the Kehar Singh case, he held office from 1997 to 2002. As his secretary for the first three years of his tenure, I could see that the number of death sentence cases coming to him were fewer than ever before. He spent hours over each ‘death sentence’ or ‘commutation’ case, going through the materials, relevant law books, and holding discussions with officials and experts. Possessed of a sense of the place of crime and punishment in civilisation’s evolution, he asked perceptive questions and got answers which sometimes satisfied him, sometimes not. President Kalam, coming immediately after him, was thereby able to go a step further and ask for a comprehensive policy review of the death penalty.

This is yet to happen.

It is not as if unusual steps have not been taken: following a Cabinet decision on November 12, 1968, “all persons under sentence of death as of that day, would have their sentences commuted” under an amnesty marking the birth centenary of Mahatma Gandhi. We are not incapable of unexpected, innovative steps.

Yet, just as we seem to be ready to reflect on the concept of the death sentence and the need for a more civilised penology relevant to our times, terror strikes. The fiery moment singes reflection and, in legitimate fury, asks: “When will this madness stop, how will our trauma end?” And it demands, at the very least, condign punishments for the act of terror. Very likely, the Delhi High Court blast was intended by its planners to precipitate pending decisions on commutations, thereby sharpening tensions, deepening divides. For the masterminds, one terrorist going through the gallow’s drop-vent costs nothing. Its negative fallout fetches a pot of gold.

Because of the randomness of terror’s conceit, its cold-blooded , conspiratorial origins and the danger it deliberately unleashes of a communal fallout, more, much more, than traditional penology is needed to meet it. A hanging may appear to provide ready catharsis. But only internationally coordinated strategies that go beyond hang-houses can immobilise terror’s masterminds and address its causes.

Our Constitution provides for Parliament receiving messages from the President on matters of moment. If such a message on the nature and efficacy of the death sentence comes to Parliament, our MPs could well unveil a new and calibrated penology. One that consolidates our evolving but scattered case-law on the question and advance the ends of justice in our complex times, beyond the mocking symmetry of one unseeing eye avenged by another.

Gopalkrishna Gandhi is a former administrator, diplomat and governor
The views expressed by the author are personal

First Published: Sep 09, 2011 22:26 IST