Political Diary
New
Delhi, 11 February 2020
Done To Death
POLITICS OF
PUNISHMENT
By Poonam I Kaushish
Phew, as Delhi resounds to
the drumbeats of electoral victory and the silence of defeat, one question
continues to hang: What is justice and fair-play? Impartial punishment? What do
we mean when we talk of justice and punishment? Is our criminal justice
system done to death? Is there politics over punishment?
Take the open and shut 16 December
2012 Nirbhaya gang-rape case which ‘shocked the conscience of the nation’.
Today, it has been over seven long years and the wait for justice read hanging
continues. To put it charitably, it has become a joke as the BJP and AAP accuse
each other of playing politics.
Four rapists were
initially supposed to be hanged on 22 January, rescheduled for 1 February as
one or the other had not exhausted all legal
options to ensure they are not sent to the gallows or in the worst, defer their
execution. Bringing things to such that none is wiser when the convicts
will be executed as the High Court has deferred the hanging till further
orders.
And thereby hangs a tale. Of a
legal system which is slow, laggard and cumbersome is open knowledge, but that
a iron tight case can drag on for years is scandalous and brings into sharp
focus our criminal justice system or lack of it.
Think. The four convicts were
awarded death penalty by a trial court in September 2013 which was upheld a
year later by the Delhi High Court. The case moved to Supreme Court, which
accepted it as a “rarest of rare” crime and sentenced all four to death in May
2017. But the convicts, for reasons best known to them, failed to file curative
or mercy pleas within two weeks.
Thereafter, review petitions were filed in
the Supreme Court by three accused which were dismissed in July 2018. The
fourth filed his review plea in December 2019, which too was dismissed. On 7
January the Delhi Sessions Court slated hanging for 22 January. Two convicts
filed curative petitions seeking to commute the death sentence to life
imprisonment which also were dismissed by the Supreme Court on 13 January.
The third then filed a mercy plea on 16
January which was rejected by President Kovind. He then filed a petition in
court, demanding a stay of hanging, following which the court postponed execution
to 1 February.
Dissatisfied he challenged the
rejection of his mercy plea on 28 January, saying the President “did not apply
his mind”. A three-judge bench of the Supreme Court dismissed his plea on 29
January. Then his co-rapist knocked on Presidential doors for mercy and another
filed a curative plea before the Supreme Court.
With the hanging deferred indefinitely the Centre requested the Court for individual hanging
which was rejected
even as it gave the convicts seven
days to exhaust all their legal remedies.
Undeniable, we can blame it on our laws.
According to the Delhi Jail Manual, Rule 14(2), multiple convicts in the same
crime cannot be hanged before each one of them has exhausted all legal options,
including filing a mercy petition before the President.
The primary reason the convicts
are not exercising their legal options together is because it buys them time to
delay or stay their execution. They get a 14 day respite after all recourses
fail before being hanged to make “peace with God” and accept fate.
Not only Nirbhaya, but delays seem inbuilt
in our legal system. Remember Dhananjoy Chatterjee was hanged in 2004 after a
lapse of six years, Pakistani terrorist Kasab’s execution came after eight
years, Parliament attacker Afzal Guru after 12 years and Yakub Memom after 21
years.
One could argue that the fault-line between the pronouncement of death sentence
and its actual execution testifies to the increasing discomfort within the
system. Every year, courts award dozens of death sentences. Yet only few hang.
According to a study by Delhi’s
National Law University between 2000-2014 courts sentenced 1,810 people to death but over half of these were commuted to
life imprisonment by courts and a quarter convicts were
acquitted. Of the quarter cases left only the high-profile ones seem to
actually meet the hangman.
Supporters of death
penalty assert what if it is a family member? Death penalty gives closure
to the family, executing someone permanently stops the worst criminals and
translates into a safer environment. It acts as a deterrent for others from committing
crimes that could get them killed. See, if one is imprisoned for life he could escape
or be released for good behavior and again murder.
Those against death penalty say it goes
against the basic right to life and has failed to be a deterrent. There are no
statistics to prove hanging convicts stops others
from committing similar crimes. Daily,
thousands are raped but why are only Nirbhaya killers being hanged? The law
sometimes makes mistakes, what if someone is killed who is actually innocent?
Recall, in 2009 the Supreme Court admitted it had wrongly sentenced 15 people
to death over 15 years.
Not a few aver decisions on death penalty
are based more on politics than on law. Whereby, hanging is used as a political
tool for a Government to showcase its strength and decisiveness. See how Afzal
Guru and Kasab languished in jail for many years under the UPA Government but
were post-haste put to death by Modi’s Sarkar
showing it was dabang!
Besides, why is there no clamour for death
of the Kathua rapists who not only gang-raped a minor girl but murdered her?
Whatever happened to the Supreme Court’s dictum that death penalty should be
given in the “rarest of the rare” cases. Wasn’t that a rarest of rare case?
Moreover, there have been occasions where
the Supreme Court has admitted its inability to evolve a uniform standard for
determining the “rarest of rare cases” in which death penalty can be imposed.
Explicitly, the incongruity of weighing aggravating and mitigating
circumstances to determine whether a convict fell in the rarest of rare
cases.
Pertinently,
while 102 countries have abolished death penalty India and 62 other nations
including US, China, Japan have it. Said a social scientist, “Hanging is part
of popular collective consciousness in India which demands
an-eye-for-an-eye-tooth-for-tooth. If there's crime, there has to be
punishment. See how the Telangana rapists killings were celebrated. Life has to
goes on.”
Look at the dichotomy, rape and murder cases are rising alongside the number
of death sentences awarded by courts. Yet, despite knowing they could be
awarded death penalty rapists seem to be killing their victims more frequently.
Perhaps, paradoxically, the fear of death penalty goads rapists to murder in
the hope they will go scot free as there is no witness to file a complaint
or give testimony in court.
Kudos to Andhra Chief Minister Jagan Reddy
who passed the AP Criminal Law (Amendment) Act 2019 to award death sentences to
convicts in rape cases within 21 days. Alas, most other States have yet to
set-up fast-track courts for sexual offences. On the fallacious plea they don’t
have money.
However, if the purpose of criminal laws is
not merely to punish the wrongdoer but also ensure punishment serves as a
deterrent for future crimes, then our judicial system is a huge failure. It
punishes at snail's pace, neither satisfying the victim’s quest for justice nor
serves as a restraint for potential violators.
Certainly, the Nirbhaya rapists will
eventually face the noose and will satisfy our bloodlust, but it will not make
justice any faster. Time now for our Government to issue clear guidelines,
implement laws to fast track cases which award death penalty instead of
‘hanging’ on for years in courts. Time to overturn the adage ‘justice delayed
is justice denied.’ -----INFA
(Copyright, India News & Feature Alliance)
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