‘Certainty, not severity, of punishment must be guaranteed’

THE execution of Yakub Memon, convicted by a TADA court in the 1993 Mumbai blasts case, has brought to centre stage the issue of capital punishment. Brinda Karat of the CPI(M) initiated a petition representing the intelligentsia and the judiciary, signed and addressed to the President of India, to reconsider Memon’s mercy plea on the grounds of merit and international covenants on human rights. Excerpts from an interview to Frontline on her party’s stance on the death penalty in general and Memon’s case in particular.

What were the reasons for initiating this mercy petition for Yakub Memon which has drawn the support of a large number of individuals? The petition argues that the death penalty cannot be imposed until Parliament decides not to abolish it.

The petition was initiated by three of us and it received the support of eminent people from all walks of life. One of the arguments given in the petition also includes the grounds given in an article by B. Raman, who was in charge of the Pakistan desk in RAW [Research and Analysis Wing], arguing why Yakub Memon should not be hanged.

He had surrendered to the Government of India unlike the other accused. He had also given witness to the role of Pakistan in the events. It was entirely wrong on the part of the prosecution, which knew all these details, not to give this enough focus when it went before the various courts.

Yakub should not be punished for the crimes of his brother and others. He was tried under the TADA law which was scrapped precisely because Parliament believed that such an Act can have no place in the legal framework of any democratic country. Yet, the sentence of death given under that very law which no longer exists is being executed.

The petition has also quoted international covenants adopted by the U.N. General Assembly in 1966, especially the Covenant on Civil and Political Rights, its optional protocols, and the Covenant on Economic, Social and Cultural Rights.

India ratified these in 1979. One of the two optional protocols aims at the abolition of the death penalty. It says that the abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights. The President of India has the power to grant pardon or to suspend, remit or commute a sentence.

T he Law Commission of India had solicited views on the abolition of the death penalty. It was learnt that you too had been invited to participate and speak on the issue where you deliberated against capital punishment.

I spoke from the political angle arguing that the abolition of the death penalty was all the more important and necessary today because all the recent cases show how arbitrary and subjective the sentencing as well as the politics involved have been.

For example, in the case of those who have been pronounced guilty, including Rajiv Gandhi’s killers, the killers of the Chief Minister of Punjab, Beant Singh, the death sentence has been commuted and changed to life sentence.

The governments of Punjab and Tamil Nadu mobilised and organised their MLAs against the death sentence and are even demanding their release. Whereas, when Afzal Guru was hanged, the Kashmir government did raise a feeble voice, but it went unheard in the corridors of power because it was politically expedient to ignore it.

So, when politics decides who lives and who dies, it is a mockery of the judicial system and that is what is happening in India. That is as far as the execution is concerned. As far as the sentencing is concerned, that is also very arbitrary. Who is to decide what is the rarest of rare. While Nirbhaya’s killers can be given the death sentence, Surekha Bhotmange’s killers in Khairlanji do not get the death sentence.

The reasoning behind giving the death sentence by the courts themselves is highly questionable because in deciding the rarest of the rare, one argument advanced by the courts has been that we have to “assuage the collective conscience of the nation”. Now this is the language of khap panchayats, not the language of courts. Collective conscience is the attitude of a lynch mob; it cannot be a deciding factor for the death sentence.

The death sentence, is the final judgment. But in reaching that, are we sure that the investigation processes have been fair or have been given a chance? In many cases we find that the rich get the best legal representation and can escape the law in most crimes they have committed, including financial crimes, while the poor begin with a class disadvantage and if they happen to be Adivasi or Dalit, the caste bias is also very evident.

This is not a question of opinion but of fact where we have wise judges holding an opinion that an accusation of rape by a lower-caste woman against an upper-caste man can never be true. Gender, caste and class are very much on the minds (of a section) of judges.

This sort of bias makes it clear that even in the investigation there is a lack of a level playing field. The kind of legal help that a poor person gets is of very poor quality. When the investigation is flawed and when there are biases in the system, the room for making a mistake is too high.

The death sentence or “phaansi do”, especially in cases of rape and brutal sexual assault, is a very popular demand. It is because of poor investigation and the flaws in our judicial system that there is no certainty of punishment.

So, when there is no certainty of punishment, the tendency is to [take the] shortcut and outsource the entire process to the hangman’s noose. I have worked with AIDWA [All India Democratic Women’s Association] and I have seen on the streets, the spontaneous anger that results in the “hang them” slogan.

It is understandable in the sense that the anger is against a system that does not guarantee justice rather than a belief that closure comes only from hanging. In fact, punishment can be even greater if a person is locked up for the rest of his life. It is not so much the severity of the punishment, but certainty which must be guaranteed.

So, when certainty is not guaranteed, we shift to severity. That is not to say that there should be leniency in sentencing in such crimes. On the contrary.