Gulbarg society verdict exposes selective use of death penalty

It is high time that India, which prides itself as the largest democracy in the world, abolishes capital punishment altogether.

 |   Long-form |   18-06-2016
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Although sanctioned in most ancient civilisations, death penalty for crimes, even the most heinous, appears to me against the basic principle of human rights. I believe that the Hammurabi's code of "an eye for eye" may leave the world blind, or one-eyed at best. Life imprisonment hence should be the highest punishment given to any convict in the 21st century civilised world.

In countries like ours, there is another fear: death penalty being used selectively against certain sections or those belonging to the marginalised communities - like a "lethal lottery", as a report by Amnesty International had noted in 2008.

Also read: Demonisation of Ehsan Jafri is now complete

The verdict on June 17 in the Gulbarg society massacre case, in which 69 persons were burnt to death, has once again reignited the debate on death penalty in the country. The massacre was one of the most gruesome incidents during the 2002 Gujarat riots so much so that the special court itself described it as the "darkest day" in the history of civil society.

Eleven of the convicts were awarded life imprisonments, one a ten-year jail term and 12 others seven-year jail terms. Many people on social media are comparing what they termed as "lighter punishment" in contrast to the Godhra train carnage case or even the 1993 Mumbai serial blasts. While comparing different cases would not be fair as two wrongs never make a right, but there is certainly need for deliberations on the question of death penalty itself.

maya-nbabu_061916035004.jpg Maya Kodnani and Babu Bajrangi were accused in the Naroda Patiya massacre case. The special judge observed, "Use of death undermines human dignity." 

The judiciary is supposed to be unbiased, which makes no distinction between the rich or poor, or one based on caste, faith, and so on. In 1980, the Supreme Court had ruled in the Bachan Singh judgment that the death penalty should be used only in the "rarest of rare" cases.

Also read - Gulbarg Society massacre: Timeline of a tragedy

A perusal of some of cases involving convicts on the death row, as also some high profile cases, will, however, make it amply clear that application of capital punishment is very subjective, selective and there appear to be no set standards.

The criteria for deciding the "rarest of rare" cases appear arbitrary, at best; or politically motivated and biased at worst. According to a study, 93.5 per cent of death row convicts are either Dalits or those belonging to religious minorities, particularly Muslims. The same report also points out that 75 per cent of those on the death row come from economically weaker sections of the society.

Also read - [Explained] 2002 Gulbarg Society massacre: 24 convicted, 36 let off

In the Gulbarg case, the court refused to give capital punishment arguing that there is no evidence to suggest that the murders were pre-planned, adding that it was spontaneous reaction to provocations, that is, firing by former Congress MP Ehsan Jafri angered the mob that had gathered.

Why the mob had gathered there and what provoked Jafri to fire did not seem to matter. The court further said that "no previous antecedent has been placed on record" against the accused, adding further that 90 per cent of the accused who were on bail have had no complaints against them even by victims.

It should be noted here that 14 years have already passed since the horrendous crime took place and hence some of those who already spent 14 years in jail may walk free if the state government decides to remit their sentence. Also remember that about 90 per cent of the accused had got bail during the course of the slow trial. Even the Supreme Court-appointed special investigation team (SIT) believes that the verdict is too "lenient and inadequate". It appears to be a case of too little too late.

In August 2012, while pronouncing its judgment in another infamous case related to the 2002 Gujarat riots, special judge in the Naroda Patiya massacre case, Jyotsna Yagnik, had observed that "while death penalty may have been desirable, the global trend against the same in recent years cannot be overlooked," further adding, "Use of death undermines human dignity." The two high profile convicts in this case were former Bajrang Dal leader Babu Bajrangi and former Gujarat minister Maya Kodnani, both of who are out on bail.

In 2006, in the Khairlanji Dalit massacre by members of the dominant Kunbi caste, the death penalty of six convicts were later commuted to 25 years of imprisonment. Similarly, in the 1997 Laxmanpur-Bathe massacre case where 58 Dalits were brutally gunned down by the Ranvir Sena, the 2010 judgment by the trial court had dubbed the killing as a "stigma on civil society and rarest of rare case of brutality", giving death sentences to 16 and life imprisonment to ten others. In 2013, however, the Patna High Court acquitted all of them citing lack of evidence against the convicts.

The above instances appear to suggest that the judiciary in India is getting really progressive and are cautious in pronouncing the death penalty or even if the death penalty is announced higher courts exercise restraint. But we rarely see such leniency in cases, particularly involving those from the marginalised communities.

The 2011 verdict in the 2002 Godhra train burning case itself is very interesting. While Maulvi Saeed Umarji, who was regarded as the prime conspirator by the SIT, was acquitted, the trial court still agreed that the carnage was a "pre-planned conspiracy".

Of the 31 convicted, 11 were awarded death penalty and rest life imprisonment. The state government was not satisfied with the judgment, and challenged the acquittal of 61 others while also demanding death sentences for 20 convicts who were awarded life imprisonment.

Similarly, while awarding capital punishment to Parliament attack convict Afzal Guru on two counts in "a terrorist act of gravest severity", the Supreme Court had observed, "The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender." Guru was executed on February 9, 2013.

In recent years, three high profile executions were those of 26/11 Mumbai attacks convict Ajmal Kasab (November 21, 2012), Afzal Guru (February 9, 2013) and 1993 Mumbai blasts convict Yakub Memon (July 30, 2015). Before Kasab, it was the poor security guard Dhananjoy Chatterjee who was executed for rape and murder of a teenage girl in 2004 after a gap of nine years.

In fact, in Gujarat, due to immense media and civil society scrutiny, at least in some cases there have been punishments, howsoever lighter; unlike say fo0r the 1993 Mumbai riots, 1987 Hashimpura massacre, 1983 Nellie massacre or most recently, the 2013 Muzaffarnagar riots.

One may argue that in the eyes of the country and its penal laws, terror acts (and in some instances rape) are graver crimes than communal or caste violence (discounting rapes that occur during such crimes). And hence, harsher punishments are given to those involved in more heinous crimes, which may fall in the category of "rarest of rare" as the apex court had noted. But perusals of some of the high profile terror cases make even this argument hollow.

The Tamil Nadu government and Tamil leaders openly champion the cause of clemency to death row convicts in the Rajiv Gandhi assassination case on the ground of inordinate delay in deciding on the mercy plea.

The Jayalalitha government has once again written to the Centre for their release without being labelled "anti-national". Similarly, politicians from Punjab and even Arvind Kejriwal can openly advocate for the clemency of Devinder Pal Singh Bhullar, a convict in 1993 Delhi bomb blast case.

This is not to suggest that in the above instances the convicts deserved any less punishment, but certainly the application of capital punishment, and particularly those who reach the gallows are selective. In 2008, Amnesty International had brought out a report, "Lethal Lottery: The Death Penalty in India. A study of Supreme Court judgments in death penalty cases 1950-2006", in partnership with the People's Union for Civil Liberties (Tamil Nadu and Puducherry), and had observed: "The fate of these death row prisoners is ultimately a lottery."

The report had noted, "The administration of the death penalty in India has not been in the 'rarest of rare cases' as claimed in the country... On the contrary, there is ample evidence to show that the death penalty has been an arbitrary, imprecise and abusive means of dealing with defendants."

One hundred and two countries around the world have already abolished it for all crimes, 32 others have done so in practice, while six more have done it for ordinary crimes. Only 58 countries still practise it.

As capital punishment is liable to be used selectively and also because it contravenes the basic human rights, it is high time that India, which prides itself as the largest democracy in the world, abolishes the death penalty.

Writer

M Reyaz M Reyaz @journalistreyaz

The writer is a journalist who also shares his knowledge with young minds as an assistant professor of media communication at Aliah University, Kolkata.

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