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Tuesday, December 1, 2015
- Campaigners against the death penalty in India are hopeful that a series of commutations of hanging sentences to life imprisonment this month will add up to a trend against the award of capital punishment.
”There is definitely a marked reluctance among judges in India to hand out death sentences and this is absolutely right,” says Maja Daruwalla, director of the Commonwealth Human Rights Initiative (CHRI).
Daruwalla said two of the three commutations this month were especially commendable because they dealt with rape and murder cases where the families of the victims were motivated to demand the extreme penalty ”apparently out of a strong desire for vengeance.”
On Oct. 7 India’s Supreme Court, seeing ‘mitigating factors,’ commuted the death sentence of Santosh Kumar Singh, awarded by a lower court for the sensational rape and murder of Priyadarshini Mattoo, a fellow law student, 14 years ago.
The apex court stuck to its principle that the death penalty should be resorted to only in the ”rarest of rare” cases.
The Court observed that Singh belonged to a social class that enjoyed “unlimited power or pelf or even more dangerously, a volatile and heady cocktail of the two.”
Yet, because the “balance sheet tilts marginally in favour of the appellant”, judges H.S. Bedi and C.K. Prahlad decided to convert the death sentence awarded by the High Court into life imprisonment while maintaining the conviction.
“Where the option is between a life sentence and a death sentence and the court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser sentence should be awarded,” the judges explained in their landmark decision. “This is the underlying philosophy behind ‘the rarest of the rare’ principle.”
Daruwalla said that it was important that the judges upheld the idea that the convict should be given a chance to reform. ”There is nothing to suggest that he [Singh] would not be capable of reform,” the judges had ruled.
According to Daruwalla the apex court was only following tradition laid down by India’s great religious or philosophical teachers such as Gautam Buddha and Mahatma Gandhi that no one has the right to take life.
A day after the apex court’s ruling, another court in southern Bangalore shied away from passing the death sentence on a cab driver Shiva Kumar found guilty of raping and murdering an employee of a business process outsourcing unit of the Hewlett Packard corporation.
The leniency in the two cases contrasted sharply with the 2004 hanging of Dhananjoy Chatterjee, sentenced to death for the rape and murder of a 14-year-old girl in her apartment in Kolkata city in 1990.
Chatterjee’s hanging, carried out after several appeals at different levels of the judiciary failed, and clemency was denied by the government, was seen by many activists as a setback for the death penalty abolition campaign in this country.
The People’s Union of Civil Liberties (PUCL), a leading rights organisation, had then argued that executing Dhananjay would be retributive and an instance of state terror.
”That deterrence has never worked because the real issue is the existence of a culture that treats women as non-persons, which needs to be transformed first,” says PUCL counsel and rights activist Colin Gonsalves.
While Dhananjay’s hanging was the last carried out in India, this country may still be several years away from complete abolition of capital punishment going by recent pronouncements made by K.G. Balakrishnan, India’s former chief justice and currently chairman of the National Human Rights Commission, a statutory body.
Balakrishnan holds that the death penalty has a deterrent effect especially at a time when different types of crime are on the increase. “If you analyse, many of those who were given death penalty really deserved it,” said Balakrishnan in response to questions from reporters on the subject.
India joined 53 other countries to vote against the December 2007 United Nations General Assembly moratorium on executions, passed with 104 votes in favour and 29 abstentions. But Indian judges generally follow the 1983 Supreme Court ruling that the death penalty may be resorted to only in the “rarest of rare cases”.
The reluctance of judges to order hangings (the sole approved form of capital punishment) may be seen from the fact that only one person is due to be hanged for the 1995 assassination of Beant Singh, then chief minister of the western state of Punjab.
On Oct. 12 the Punjab and Haryana High Court commuted the death sentence of Jagtar Singh Hawara, one of two Sikh militants due to hang for the assassination in which a suicide bomber and 17 others died. The other militant, Balwant Singh, did not appeal against his death sentence.