Open Forum
New Delhi, 6 February
2020
Death
Row Convicts
WHOSE
RIGHT IS TO PUNISH?
By
Dr.S.Saraswathi
(Former
Director, ICSSR, New Delhi)
The Supreme Court has
admitted the government’s plea to issue “victim and society centric” guidelines
to prevent delay in the execution of death row convicts. But, it is not for consideration of any plea
to alter judgements that have been pronounced or the existing rights of
convicts. The case pertains to the gruesome rape and murder of “Nirbhaya” in
2012 in a moving bus in the nation’s capital city, Delhi.
The ground for fresh
guidelines is the possibility of legal use of existing norms to protect the
condemned convicts by delaying execution. These norms framed in 2014 were said
to be “accused-centric”. Under Delhi Prison Rules, if an appeal or an
application is made by even one convict only in a group crime, execution of the
sentence has to be postponed in the case of co-convicts.
The Delhi Court
postponed the hanging of all the four convicts as they filed mercy petitions one
after another. Until they exhaust all
legal options to reduce the sentence, execution cannot take place.
The government rushed
to the High Court challenging this order for postponement of hanging of the
convicts and pleaded for an urgent hearing. The Solicitor-General is reported
to have remarked that the four convicts had taken the judicial process for a
“joy ride” and acting in tandem to delay their execution. He based his argument on the gravity of the
crime that shocked the entire nation and the anxiety of the people waiting for
justice.
In a number of cases
in the past, such delay had extended for years and had been used as a strong
ground for reducing the punishment. To
make a convict live in jail for many years waiting to be hanged is rank
injustice. Pertinently, no time limit is fixed for disposal of mercy petitions
submitted to the President. The High
Court sought the response of the four convicts and Tihar jail authorities.
The Solicitor-General
is also of the view that the four can be hanged separately – one by one. The government approached the court again to
remove the stay order on the execution of the four convicts asserting that the
credibility of the court and its ability to execute sentences were at
stake. It was argued that filing of
mercy petitions by the convicts one after another was a “deliberate,
calculated, well-thought out design to frustrate the mandate of the law”.
Repeated postponement
of execution of the convicts has created a big uproar and vociferous protest
from the public and in particular from the family of the rape victim in this
case.
A vital issue that
has arisen in this phase is the right of the victim and victim’s family in a
criminal case to influence the punishment of the offender - meaning - to have a
say on the question of punishment.
Frustrated victims if
they are alive and their family have in many cases genuine grievances about
State’s failure to decide cases and execute punishments expeditiously. Speed is
a casualty in court cases and death penalty cases in particular undergo enormous
procedural delay. It is understandable that all avenues of justice should be
open to convicts and miscarriage of justice cannot be allowed in hanging cases.
In assessing the
physical and moral seriousness of a crime, the direct impact on the victim and
indirect impact on victim’s family and others are very important data.
Therefore, the victim’s say on sentencing seems to matter a great deal. However, it cannot be the deciding factor for
the quantum of punishment which has to
be decided only by the judge after hearing all sides. The judge alone can decide impartially and
not the victims and their lawyers, relatives, friends and supporters who are
emotionally affected.
Rape-cum- murder is
one of the most heinous crimes and when it is committed in the most cruel
manner, it deserves the highest punishment and its quickest execution. In the Nirbhaya case, the loopholes in the
law and rules are to the advantage of the offenders that no criminal lawyer would
fail to use to his clients’ benefit.
Moreover, we are living in the age of human rights and supposed to have
more faith in the reform of criminals undergoing punishment than in
retribution. The blocks in the way of carrying out the sentences can be removed
only legally. Emotions have to be kept
under check and cannot be used to sway public opinion or influence judicial
verdict.
To a great extent,
principles and practices, i.e. law and implementation, are in support of the
criminals rather than the victims. In a more recent case of gang rape and
murder in Hyderabad, four accused in custody were killed in police
encounter. It led to celebrations among
the public manifesting public desire for instant justice and loss of faith in
the long legal procedure.
“Tears are shed for
the accused are traditional and trendy, but has the law none for the victims of
crime, the unknown martyrs”, asked Justice V.R.Krishna Iyer drawing attention
to the helplessness of victims. Law in
India does not give any rights to the victims in criminal cases. The State takes the responsibility to
prosecute and punish and takes the victims only as witnesses.
Crime victims often
feel cheated and this has happened in Nirbhaya case. Frustrated parents of the
victim are clamouring for “justice” as repeated postponement of hanging of the
convicts seems to belittle the crime and their agony.
But, the reality is
that we are no longer in the state of nature and we do not have a right to punish
the guilty however serious the offence. In a civil society, the right to punish
vests with the State. The jury system is also abolished in India in 1956 after the
Nanavati Case. The State takes the help of the affected in the process in the
interest of justice to all. In cases
like rape and murder, in addition to the concerned victim’s family, the entire
society is affected as it is a crime against the State and society.
Speedy trial and
execution of the sentences are matters of rendering justice to the entire
society and not to victim’s family. The
family’s loss due to the crime has no remedy and cannot be restored. Normally, family members are not likely to be
interested in the fate of the convicts unless they are scared of falling victim
again to the convicts’ rage when they are released. Execution of the convicts
is no compensation for their loss.
Victim’s say the
punishment can provide an outlet for releasing the suppressed mental pain and
anger and serves as a lesson to all including the criminals to visualize the
gravity of the crime. It is necessary for prevention of crimes, but not for
punishment of offenders which is a legal issue.
There is need for
expediting procedures in criminal cases and execution of sentences as necessary
reforms in the judicial system. This is not an issue connected directly with victims.
It is a question of crime and punishment to be decided by the State whose right
is to punish offenders.---INFA
(Copyright,
India News & Feature Alliance)
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