Lack of caution and prudence vis-a-vis death row convicts

I have always looked upon death penalty as the most abhorrent means of deterring crime. No one in public office has the right to take away anybody else’s life solely on the grounds of putting fear into potential offenders. This is why even the right to private defence is not absolute. The caveat to exercising such a right is that the person should not have had any option other than killing an aggressor for protecting himself, and even this, is subject to judicial satisfaction that the former had no alternative. Having said this, I am not convinced that I can hold on to my opposition to death penalty as a sacrosanct principle from which there can be no departure. This is particularly true in the context of the mindless terrorism that now sweeps nations across the globe and the ever rising graph of violent crime, especially against women. It is, therefore, a moot question whether any dilution of death penalty is advisable when ‘the rarest of rare cases’ yardstick of the apex court had already taken care of any indiscriminate use of such penalty.

It is against this backdrop that we may have to debate the ballooning controversy about the Tamil Nadu government’s proposed release of seven convicts in the Rajiv Gandhi assassination case. This follows the February 18 commutation by the apex court of the death sentence on three of the seven to life in prison. The Tamil Nadu government’s move has been halted by the apex court. The former may not be put off by this apparent reverse. It is bound to challenge the order. My guess is that we are going to witness a long drawn out battle, at the end of which we could have a reasonably clear ruling on what the limits to a State’s authority are in such critical issues.

We will, however, be barking up the wrong tree by assailing the Tamil Nadu government. In my view the original sin is that of the Centre. In the first place, why did the apex court commute the death sentence awarded to three of the convicts in the Rajiv Gandhi case? The court went by its own recent ruling on January 21 when it commuted death sentence into life in respect of 15 prisoners on the grounds that “inordinate and inexplicable” delays in execution were a ground for commutation. It applied the same logic in respect of the three Rajiv Gandhi assassins.

I am now on a more contentious issue. In its anxiety not to tread on the Executive’s toes, the court stopped short of chastising the former in the two separate recent instances of commutation of death sentence.
In the latest ruling it was magnanimous and polite in saying: “...mercy petitions can be disposed of at a much faster pace....if the due procedure prescribed by law is followed in verbatim.” This was mild admonition by a gracious court. A sensitive government should take it seriously.

Although it is the President of India who has the last word on clemency petitions, readers should understand that it was not successive Presidents of India who were at fault. The blame rests squarely on the Executive, on whose advice alone, Constitutionally speaking, a President can and should act.

Caution and prudence, no doubt, demand that mercy petitions by those on death row should not be accepted or rejected in haste. Justice should not only be done but also should seem to have been done. But as citizens we have a right to know reasons why decision-making here is so tardy. If there are notings on the relevant file, the Executive should not hide under the exemption from RTI but take the nation into confidence whenever there has been unconscionable delays as in the Afzal Guru and Rajiv Gandhi assassins’s cases. In essence this is a plea for accountability and definitely not an exercise aimed at embarrassing those in high places. Legal correctness should take precedence over emotive appeals and short term gains elsewhere.

The writer is a former CBI director