Author: Sandhya Jain
Publication: Vijayvaani.com
Date: December 4, 2012
URL: http://www.vijayvaani.com/ArticleDisplay.aspx?aid=2584

The call for rethink comes close on the heels of New Delhi’s vote against abolition of the death penalty in the UN general assembly, and reflects the desire of a section of our political and judicial elite to conform to European liberalism, even at the cost of the needs of Indian society. They are egged on by NGOs aligned with Amnesty International and similar bodies, and perhaps funded by western sources.

Indian law is being sought to be changed with out adequate public debate; but will impact the lives of the Indian people. Hence, we must pay close attention to the merits of the issues at stake, and demand to know who is manipulating the discourse.

Speaking at an event organised by a Maharashtra newspaper on November 26, 2012, the Home Minister revealed that after Kasab’s hanging, the Centre and Rashtrapati Bhavan received a representation from 13-14 eminent Indians demandinga ban on death penalty because it was cruel. These unknown persons (whose names must be released so we can learn their ideological bias) said convicts could instead serve in jail without parole. Similar letters were received from the international community (read Western Christian nations). Mr. Shinde said Kasab’s hanging was not “cruelty” as he was part of a team that killed 166 people in Mumbai. Yet he used the Kasab case as a launch pad to promote abolition of death penalty.

On December 1, soon after a two-judge bench of the Supreme Court said it was time to revisit the death penalty, the apex court asked the Centre why mandating compulsory death penalty for some crimes should not be struck down as unconstitutional. Section 31A of the Narcotics Drugs and Psychotropic Substances Act mandates death penalty for repeat offenders trading in huge quantities of contraband. The Bombay High Court read down the law to give the concerned judge discretion to impose life sentence; when the Centre challenged this, the Supreme Court took suo moto notice of the mandatory death penalty.

This move by courts to enter the legislative domain and impose ideological infatuations compromises the constitutional separation of powers. Yet some blurring of the lines is being encouraged by Parliament itself, in the form of proposals to include the Chief Justice of India in the search committee to appoint persons to certain constitutional posts. This is could result in unforeseen chaos unless nipped in the bud.

The massacre of unarmed people in Mumbai in November 2008 and the menacing proportions assumed by the drug trade with deadly impact on society as a whole are instances of heinous crimes where large groups are targets of remorseless criminals waging war on civilisation itself. For four decades, India has suffered ISI-sponsored terrorism (Khalistan and jihad) which has claimed multiple victims in innumerable incidents of violence across the land, even as new social crimes that target whole families in mindless acts of killing are becoming known. The sexual abuse of minor children, and physical violence against young girls and women by jilted or unwanted suitors or irate relatives, are becoming disturbingly widespread.

Yet India has never been akin to Charles Dickens’ England where minors could rot in jail without reprieve for stealing a loaf of bread. Nor do we have the west’s history of kangaroo courts and public lynchings, often of innocents.

Henceour laws, and the jurisprudence behind them, must reflect our real needs and not conform to the passions or fashions of western thought or practice. Here, we may note, a Constitution Bench of the apex court in 1980 established the principal of “the rarest of rare” cases for imposing the death penalty. This principle was invoked in the Indira Gandhi murder case and others, but the apex court now feels it requires a “fresh look” owing to the absence of uniformity about what constitutes ‘rarest of rare’ cases.

The truth is that crime has ceased to be rare; it has grown in depravity and the volume of victims who could be targetted in a single act of violence – bomb blasts in moving trains, markets, cinema halls, or roads. As technology helps motivated criminals to target more and more unarmed victims with impunity – victims are always more than those caught and punished – some argue that the death penalty has not had a deterrent effect on crime, hence it should be abolished in favour of incarceration for life.

The argument is faulty. The death penalty (or jail term) is not about deterrence; it is a judicially imposed punishment for a crime in which the accused is convicted after due process of law. So when families or villages or groups of citizens are targetted en masse, resulting in multiple murders, the abolition of the death penalty could make citizens lose faith in the judiciary itself. This could trigger undesired responses from some citizens, as also from an overworked and under-appreciated police force.

The argument that lifelong incarceration is superior to the death penalty is also flawed. American journalist Fareed Zakaria says America has over 6 million citizens in jail, more than Stalin put in the Gulag Archipelago at its height! A nexus of private companies running state prisons keeps jails packed to capacity, and richly funded, even at the cost of higher education; since 1980, California has built one college campus and 21 prisons – a model India does not need to emulate.

Ina parallel development, a division bench of the Supreme Court on November 25, 2012 stressed that life imprisonment means the balance of life and not the 14 years normally associated with life term, or 20 years associated with gruesome crimes. The court frowned on the practice of en masse release of convicts by state governments on ‘festive’ occasions and said release should be after case-by-case scrutiny only – an infringement on executive power.