Time to kill the death penalty

Public opinion may be in favour of capital punishment, but the truth is that only ‘those without capital get the punishment’

 

A clutch of recent cases of capital punishment and the public discussion of the views of President APJ Abdul Kalam and chief justice-designate YK Sabharwal on the matter have brought to the fore the need for India to reconsider its position on the death sentence, and do away with the death penalty for good.

The Dhananjoy Chatterjee case, where the accused was sentenced to death for raping and killing an 18-year-old girl, took the nation by storm and galvanised public opinion in favour of the death penalty. The date of Chatterjee's execution was announced despite the fact that he had a mercy petition pending before the President. When the President rejected Chatterjee's plea for commutation, he was hanged by the West Bengal government.

Public opinion is much in favour of the death penalty. One of the country's most prominent women's organisations recently took an about turn and said that it supported the death penalty in 'special cases'. That, in any case, is how things have been in India since 1970, when the Supreme Court, in Bachan Singh vs State of Punjab, rejected the challenge to the constitutional validity of awarding the penalty.

When LK Advani, the former home minister, echoed the populist mood and said he was willing to introduce the death penalty for rape if women's organisations agreed, there was an outcry. It was the certainty of punishment, not the severity, that mattered, they said.

And in the midst of all this, when a principled stand was required to be taken, the Law Commission came out with a report asking for hanging to be replaced by the lethal injection!

We are at the threshold of developing a society so disfigured by violence that the very foundations of democracy are threatened. On the horizon is the police state.

The majority, in the constitutional bench decision in Bachan Singh's case, reduced the death penalty argument to a triviality. Its view was that if in the civilized world people are divided on whether there ought to be capital punishment, a decision on this would have to be taken by the legislature rather than the Supreme Court. The Constitutional Court of South Africa did not take such a limp and easy way out. In a stunning decision, the court unanimously held the death sentence to be unconstitutional.

Justice PN Bhagwati's courageous and erudite dissent in the Bachan Singh case will remain one of the finest ever rendered in Indian jurisprudence. I have no doubt that, sometime in the future, the death penalty will be erased from this country's statute book. But till then it will stand out as a decision to trouble the conscience of those who advocate the death penalty, and of judges who impose it.

This country's judges have lost the ideological battle waged by the police against them on television and in the print media. In a short-sighted attempt to appear stricter, they have begun to dilute the safeguards of criminal law and the standards for executions. Ad-hoc judgements, naïve pragmatism, silly common sense and guesswork have replaced the sound tenets of criminal jurisprudence. The victims are always the poor and the marginalised: dalits, adivasis, unorganised workers and Muslims. As KG Kannabiran, human rights lawyer and president of the People's Union for Civil Liberties said, "It's only those without capital who get the punishment."

The writer is a lawyer and civil liberties campaigner

 

Innocent but damned

Tim Evans was charged with the murder of his wife, Beryl, and hanged in March 1950. Wrongfully, as it turned out, because the murderer was actually their neighbour, a Dr John Christie, a serial killer who had killed eight women before murdering Beryl and buried them in his backyard. This gripping real-life case was made into a movie, 10 Rillington Place, starring John Hurt as Evans and Sir Richard Attenborough as Christie.

In August 2005, the Georgia Board of Pardons and Paroles announced that it would issue a formal pardon for Lena Baker, the only woman executed in the state during the 20th century. Baker, an African-American, was executed for the murder of Ernest Knight, a white man who hired her. Baker was tried and sentenced to death, in one day, by an all-white, all-male jury.

DNA saves

Since 1973, 121 people in 25 states of the US have been released from death row after evidence of their innocence was confirmed, mainly through DNA testing.

Kirk Bloodsworth was 24 when he was sentenced to death for raping and murdering a girl in 1984. After almost nine years behind bars, Bloodsworth was found innocent by the State of Maryland. Scientific testing had advanced enough to confirm that the semen on the girl's panties was not Bloodsworth's.

In 2004, 24-year-old Ryan Matthews was freed with the help of DNA testing. Shortly after his 17th birthday, Matthews was arrested for the murder of a local convenience store owner. In March 2003, Matthews's attorneys had the physical evidence retested. The DNA results exonerated Matthews.