Friday, Dec 20, 2002
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SHOULD WE LIVE with the death penalty? The sentencing to death of three of those found guilty in the Parliament attack case by the special POTA court is bound to agitate questions about the use and imposition of capital punishment. There are two kinds of issues that the sentencing throws up. First, the narrower or limited one namely, whether the three men (Shaukat Hussain Guru, Mohammed Afzal and S.A.R. Geelani) deserved to receive this harshest of punishments. And second, the more general and wide-ranging one namely, whether there is any place for capital punishment in a modern and civilised society. In his order, the special court judge, S.N. Dhingra, addresses the first question by trying to show why the Parliament attack case falls into the category of the "rarest of the rare cases", or those that warrant the death penalty. While describing those who he sentenced as hardcore terrorists and enemies of mankind, his order also touches on the second issue by providing a general justification for the death penalty: "The punishment in such cases must be a deterrent to others".
Mr. Dhingra has made it more than clear why he believes that those he found guilty should be treated with no leniency whatsoever. However, one of the things that the history of capital punishment in this country (as well as many others) has demonstrated is that in highly sensitive or emotive cases, there is no guarantee that justice will not miscarry in the face of social pressures for conviction or the presence of an overzealous prosecution. Moreover, a further problem with the application of the death penalty is that it involves a great deal of judicial discretion; as a result, whether a person is hanged or not depends considerably on the views of a particular judge. For instance, in the Rajiv Gandhi assassination case, the special court in Tamil Nadu sentenced all 26 accused to death. A year later, the Supreme Court commuted three of the death sentences to life and released 19 defendants on the grounds that they were guilty only of relatively minor offences and had already served several years in custody as undertrials. The inevitability of judicial error in a penalty that is (uniquely) irrevocable is one of the truly frightening features of capital punishment.
As for the Parliament attack case, the role of at least one of the three sentenced to death the suspended Delhi University lecturer, S.A.R. Geelani seemed somewhat marginal to the overall conspiracy. In fact, none of the three was directly responsible for perpetrating the outrage within the precincts of Parliament House. On this question, however, the court has adopted a strict construction of the law, having observed that those who hatch a criminal conspiracy to wage war against the nation are equally guilty as the actual perpetrators of the crime. As for the court's general observation that the death penalty acts as a deterrent, it is an argument that is commonly advanced by proponents of capital punishment. However, there is no conclusive empirical basis to the claim that the death penalty puts off or discourages potential criminals. The death penalty continues to apply to a wide range of offences in India even as more and more countries all over the world are turning abolitionist, many of them in law and the others in practice. It is odd that even as the international consensus against the death penalty increases continuously, the scope for applying it has increased in India over the years. The most recent example of this, of course, is the revival of TADA through the passing of POTA, a legislation that was modelled on the lapsed law and is disturbingly similar in many ways. Criminals deserve to be punished and, if their crimes warrant it, with severity. But even harshness has its limits, which are dictated by conceptions of justice and a respect for human life and dignity. And as long as effective alternatives to capital punishment exist, there will always be doubts about its use as an instrument of social policy.
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