Justice or revenge?

AJMAL AMIR KASAB'S death sentence has brought the issue of capital punishment again into the spotlight. There are already calls for his execution although the legal process is far from over. However, given the irreversible and final nature of capital punishment, a number of steps are required be to taken before any execution can take place.

The death sentence has to be confirmed by the High Court and time allowed for an appeal to be made to the Supreme Court. After the conclusion of the judicial process, mercy petitions take centre stage. This is a two-tiered process. In Kasab's case, the first mercy petition will be sent to the Governor of Maharashtra. If that is rejected, a second and final petition will be sent to the President of India. Under India's constitutional system, the actual decisions are not made by the Governor or the President, but instead by the State and Central governments, as the constitutional heads are bound by the advice of their respective Cabinets.

Some Congress officials, including Union Law Minister M. Veerappa Moily and spokesperson Abhishek Manu Singhvi, have indicated that the judicial and mercy processes could be fast-tracked and the hanging carried out within a year. These views appear to be a populist attempt by the government to deflect growing pressure from victims' groups as also the Bharatiya Janata Party (BJP) and other right-wing political parties. Just before the death sentence was awarded to Kasab, the Union Home Minister P. Chidambaram had indicated that the regular procedure for mercy petitions would be followed in this case and no exception would be made.

Such inconsistency in messages is not unusual. An examination of the death penalty in India over the past 10-15 years will show a number of such inconsistencies. The most significant inconsistency is that despite the continual expansion of capital-eligible crimes and the scores of persons sentenced to death every year in India, hardly any executions take place. There has been only one execution in India after mid-1997: that of Dhananjoy Chatterjee, on August 14, 2004, in Kolkata. How has this situation of a virtual end to executions come about? For a start, it has not been a sudden move. As Table 1 and in particular the last column shows, executions in India have been coming down steadily after Independence.

The early decline in executions appears to be a result of the amendment to criminal law in 1955-56 (that did away with the idea of death penalty being the obvious punishment for murder) along with an increase in the grant of commutation in mercy proceedings. The sharp decrease in the 1970s is likely to be because of the new Code of Criminal Procedure of 1973-74, which made the death penalty an exceptional punishment. The decline in the 1980s is a direct result of the judgment of the constitutional Bench of the Supreme Court in Bachan Singh v. State of Punjab, which limited the award of the death penalty to only the rarest of rare cases. With the number of people being sentenced to death itself reducing (as evident from the lack of disposal of mercy petitions), executions were bound to reduce as well.

The situation in the last two rows of Table 1 (post-1995) needs further clarification. The small number of petitions disposed cannot be taken to mean that the courts were awarding fewer death sentences. Instead, post-1997, the number of petitions disposed is small since there have been a large number of mercy petitions that have been kept pending by the President and upon which no decision whatsoever has been made. At present, there are 29 files involving mercy petitions of 52 persons which are pending disposal at the Central level between the Ministry of Home Affairs (MHA) and the Rashtrapati Bhavan.

Further, if the period from 1995 to 2004 is broken down, six of the seven executions in this period took place during 1995-97. Thus after mid-1997, there has only been one execution in India, and none since 2004 a virtual end to executions. Such a situation, however, is not the result of a policy decision to move away from the death penalty. On the contrary, through the past decade the Indian government has constantly rejected calls by various U.N. bodies and others seeking a moratorium on executions and death sentences.

Role played by Presidents

India's virtual end to executions after 1997 owes much to the role played by Presidents K.R. Narayanan, A.P.J. Abdul Kalam and Pratibha Patil. With respect to mercy petitions, it is well known that the power of the President is limited. The Home Minister makes a recommendation on the mercy petition file and sends it to the President for signing. The President may return the file once for reconsideration, but must sign if the file is returned to him or her. There is, however, no time-limit prescribed for this, allowing the President some room for manoeuvrability.

The role played by Narayanan President of India from 1997-2002 was absolutely vital and deserves much greater study. A trickle of executions was continuing when Narayanan joined office in 1997. The first mercy petition forwarded to him was that of Piara Singh and others on November 11, 1997, with a recommendation from the Inder Kumar Gujral-led United Front government to reject it. This petition was sent back for reconsideration by President Narayanan. The next petition (G.V. Rao and S.V. Rao) forwarded in March 1998, came with the advice to commute and the President disposed it accordingly.

Subsequently, with the BJP-led National Democratic Alliance (NDA) forming the government and the pro-death penalty L.K. Advani heading the Home Ministry, many more petitions with recommendations to reject began to be forwarded to the President. In all, nine cases (including that of Piara Singh, which was re-sent) were placed before Narayanan from 1999 to 2001 with recommendations to reject the petitions. Eight of these were kept pending.

The only rejection allowed by Narayanan was that of Govindasami from Tamil Nadu. The rejection of this mercy petition suggests that although he was opposed to the death penalty, Narayanan had not made any blanket decision to commute all sentences or keep petitions pending thereby forcing his own views on the government. This view is also shared by Gopalkrishna Gandhi, the former Governor of West Bengal, who was Secretary to President Narayanan throughout the presidential tenure.

The one petition rejected by Narayanan did not lead to hanging as Govindasami's execution was stayed by the NDA government. Thus Narayanan's tenure ended in 2002 without a single execution. Given his own personal views on the death penalty Narayanan is likely to have welcomed this fact, but it would be simplistic and dishonest to ignore Govindasami's case and attribute the virtual end of executions to Narayanan alone.

This raises an obvious question: Why did the pro-death penalty NDA government choose to stay the execution of Govindasami soon after it recommended rejection of his petition? This was certainly an unusual case where the trial court had acquitted the accused but he was sentenced to death upon conviction on appeal in the High Court. In addition, it is possible that owing to a number of appeals, the M. Karunanidhi-led Dravida Munnetra Kazhagam government in Tamil Nadu (then a constituent of the NDA) played a role in convincing the NDA to stay the execution. Various groups that sent a fact-finding team to gather more details about the crime and the social context in which it was committed certainly played a major role against the death penalty.

Active lobbying in Delhi was able to convince four Ministers in the NDA government to appeal to the MHA for commuting the sentence (Defence Minister George Fernandes, Power Minister Rangarajan Kumaramangalam, Parliamentary Affairs Minister Arun Jaitley and Law Minister Ram Jethmalani). Although the Advani-led MHA did not commute Govindasami's death sentence, it did not attempt to execute him either.

Abdul Kalam was the next President (2002-2007) and he inherited eight mercy petition files from his predecessor. In November 2003, he received his first petition from Home Minister Advani. In the last days of the NDA term, four more petitions were forwarded to the President between April and May 2004. All these five petitions had recommendations to reject them and were kept pending. Kalam took no action on the (now) 13 mercy petition files pending with his office until the end of the NDA government's term in mid-2004.

The first mercy petition that came up after the United Progressive Alliance (UPA) government took office was that of Dhananjoy Chatterjee. There were widespread press reports that Kalam was opposed to the death penalty in principle and that he also consulted the Attorney General to discuss the Chatterjee case to explore any possible commutation. There is, however, no indication in the MHA files relating to the Chatterjee mercy petition files that indicate any move by Kalam even to seek reconsideration of the MHA decision to reject the petition. The petition was rejected and Chatterjee was hanged a few days later the first hanging since mid-1997.

Following the norm of a new government providing fresh advice on pending appointments and other matters, the UPA government re-submitted all the previous 13 files to Kalam between April and August 2005. In addition, the MHA also sent the fresh mercy petition of Govindasami and the petition in the Rajiv Gandhi assassination case along with five more mercy petition files. By end September 2005 there were 20 files pending with the President, all of which carried the recommendation for rejection.

The first public indication that Kalam was dissatisfied with the existing system of death sentences and mercy petitions came during his lecture at the National Police Academy in Hyderabad on October 15, 2005, where he reportedly deviated from the official text and went into the issue of why there were only poor people on the death row.

A few days later, on October 18, the President addressed a letter to the MHA asking for a review of the 20 pending mercy files on the basis of new yardsticks prepared by him.

The last of Kalam's public statements on the death penalty was on October 26, 2005, when, in response to a question about his letter to the MHA, he is reported to have called for a comprehensive policy on the death penalty after all aspects relating to it and mercy petitions were discussed in Parliament.

These views did not appear to have much influence in the MHA or the government since two more petitions were forwarded to him for rejection in 2006 and one in 2007 taking the tally to 23 pending petitions. However, a rare petition advising commutation was also forwarded to him and Kalam authorised the commutation for Kheraj Ram on September 29, 2006.

Like his predecessor, Kalam rejected only one petition during his tenure. Unlike in the case of President Narayanan, however, this led to an execution. But like his predecessor, he too left a legacy of files behind for the next President. Pratibha Patil inherited these files. Unfortunately, the entire discussion on mercy petitions in the past few years has been limited to that around the case of Afzal Guru a non-issue, as the mercy petition is still under consideration of the government and has not even been sent to the President yet.

Pratibha Patil's load was increased when the MHA forwarded another mercy petition file advising rejection in 2007 and two with recommendations to reject in 2008. None of these has yet been rejected by her. Although her personal position on capital punishment is not known, in November 2007 the President returned one of the mercy petitions pending since 2004 to the MHA for reconsideration.

Such a move augurs well for the future as it suggests that she does not see her role as President merely to rubber-stamp executive decisions on petitions and gives rise to the hope that she will exercise her limited powers to the fullest possible extent.

In 2009, it was reported that the Rashtrapati Bhavan and the MHA had come to an agreement by which the MHA would re-examine and re-submit all the 26 pending files to the President. Although the MHA is believed to have been keen on one file being disposed every month, the President has apparently made it clear that the responsibility to clear the entire backlog could not be placed on her and that such a time limit would not be acceptable to her.

The only petition she has since disposed of is that of Govindasami in November 2009 his sentence was finally commuted upon the recommendation of the government. Recent reports indicate that the MHA has re-sent another file with the recommendation to commute two death sentences.

Three recent Presidents, including the incumbent, have shown initiative and leadership in preventing regular executions. Although some would disagree with their method, it is clear that they have stretched but not overstepped the boundaries of their limited powers with respect to mercy petitions.

A large number of cases (29 files involving 52 persons) are now lying between the MHA and the President's office for disposal. These will undoubtedly take a long time to clear as no President will want to send so many persons to the gallows without all avenues carefully explored. The fact that there has been only one execution in over 12 years also makes it difficult for the President and the government.

However, this situation also provides an opportunity for India to consider a criminal justice system without executions and the death penalty. Taking such a step requires conviction of mind and tremendous leadership. Fortunately, Sonia Gandhi as the head of the Congress party can provide such leadership on this issue. She has already shown her strength of character by not demanding the execution of those involved in the Rajiv Gandhi assassination case their petitions have been pending for nearly a decade now. Her role in the commutation of Nalini's death sentence is also believed to have been significant.

Sonia Gandhi's views and convictions cannot be disregarded by the victims and family members of those who suffered in Mumbai or from other criminal acts. Like them, she too has directly suffered great personal loss. But unlike many other victims/survivors, she has not looked towards hanging as a solution or an act of closure. Undoubtedly, Kasab's case is as difficult an obstacle as any in opposing executions and the death penalty in general, but it is such tough times that call for inspirational leadership.

It is time for Sonia Gandhi to speak with the victims/survivors of the horrors of Mumbai. Justice must not become confused with vengeance.

Bikramjeet Batra is India campaigner at Amnesty International. He is a New India Foundation fellow and is at present completing a book on the death penalty in modern India. The views expressed here are his own.

Correction

The total number of mercy petitions disposed of by the President during 1948-54 was 1,410, not 1,430 as given in the table accompanying the article on death penalty.