Capital Punishment : Six Points before Three Hangings
A system, if run by rule of law, should answer six points before signing off the three waiting convicts for hanging.
1. Pain in Penalty
Real pain in capital punishment is the knowing of forthcoming death, its time and passing through every moment of excruciating pain of that thought. Face death boldly is a sermon but suffering is different. Killing factor is mind. It is critically remarked that death penalty is less cruel compared to suffering life long imprisonment in hell-like jails. The dying by hanging completes in a second while he has to languish for very long in ‘life’. If retentionists (of capital punishment) wanted cruel treatment to convicts for high deterrent effect, life imprisonment be preferred to peaceful and human death. Perhaps, abolitionists should rethink.
2. Killers are many
In spite of his political blunders that might have led LTTE to develop grudge against Rajiv Gandhi, killing that young leader is unpardonable; the killers have to suffer all ills of punishment, undoubtedly. But it does that mean that those who were unfortunately caught and not defended by able and efficient lawyers should be killed at once. Though Rajiv was assassinated by LTTE, it was with widespread support fr0m various sections of Tamilnadu state – officially and unofficially. When Mrs. Priyanka met her father’s killer Nalini in Tamilnadu jail it was a sensation for some time. One counsel of accused belonging to LTTE held a press conference and revealed that Thanu and Nalini broke the security cordon around Rajiv Gandhi on that fateful day by bribing the constable who stopped them at outer ring. If this is true we find umpteen reasons and people for killing the former prime minister. Who deserve the death penalty?
3. Two Punishments
Let us look at this problem from other angle. Three accused were convicted of killing Rajiv and were awarded death by hanging as punishment. By the time the Supreme Court confirmed the capital punishment, they spent 9 years in jail. With all lethargy, politics of indecision and global policy of Indian executive, they could not be hanged as President waited for five years for the recommendation of council of ministers, convicts waited for another six years for the President’s rejection. They lived the ‘death’ in prison around 20 years. No court sentenced them with 11 years of imprisonment and death. When Supreme Court confirmed that they could be hanged as assassination was rarest of the rare case, why it should happen after 11 years of imprisonment?
4. Inhuman & Cruel
In TN Vatheeswaran case, the apex court of justice said if there was two years delay in execution of death penalty, the punishment should get reduced to life automatically. Later it was explained that there was no such hard and fast rule but inordinate delay in execution is a major factor for converting ‘death’ to ‘life’.
5. Degrading procrastination
Examining the constitutionality of the death by hanging and the methods of judicial killing, Supreme Court concluded ‘hanging’ as less cruel and ‘human’. Killing should be dignified and killed should be treated with all respect. At the same time Supreme Court said in another case that hanging in public is inhuman and degrading and thus not constitutional. Though capital punishment is not abolished, Executive should avoid cruelty and degrading manner. If killing is decided, not killing them for decades will have a killing effect of cruelty and renders further ‘killing’ as illegal and against the norms of the Constitution. Procrastination in every level of decision making is fatal and here it is cruel too.
Politics of death penalty should be understood from this indecisive attitude of the executive. Remission and pardon are the sovereign powers from the inception of the monarch state power, which ultimately remained with President after the powers were delegated and distributed among other subordinates as per the ‘rule of law’. Whether this power of granting pardon or reducing the death to life is subject to personal discretion of the President or the advise of the Council of Ministers? One school of thought is that President should not take a political decision based on advice of the cabinet, while others held that it is within his personal discretion.
Recently a Supreme Court advocate T R Andhyarujina referred to a judgment in a leading case fromJamaicaby the Privy Council in 1993, which read: “There is an instinctive revulsion against the prospect of hanging a man after he had been under sentence of death for many years. What gives rise to this revulsion? The answer can only be our humanity. We regard it as inhuman to keep a man facing the agony of execution for a long extended period of time. To execute these men now after holding them in custody in agony of suspense of so many years would be inhuman punishment.”
In 2009, the Supreme Court in Jagdish vs State ofMadhya Pradeshasked the Centre to decide the mercy petitions expeditiously, preferably within three months. It said the condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner and the sentence should be commuted into one of life imprisonment.
6. Mercy: Authority of President or Right of Convict?
It is not mercy or privilege of President but a right of every convict. International conventions against Death Penalty advised member-states that if not abolition of capital sentence, at least develop checks in criminal justice system and recheck the facts and law before executing the convicts. That process should include a phase where the executive would re-look into the case and consider all those facts which might not be very relevant in judicial process, and examine whether the convict deserves any lenience. It is an important question of consideration as part of constitutional obligation and not just the privilege of the sovereign head to grant or refuse the clemency. Thus it is the right of the convict to seek clemency and duty of the President or Governor to decide. Indecision is an unpardonable Constitutional wrong for which penalties are not prescribed.
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