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| Rights activists & death penalty | | | Justice Rajindar Sachar (retd) | 5/3/2013 9:45:17 PM |
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THE morality of the death penalty has again
come to the forefront by the latest Supreme
Court judgment rejecting Bhullar’s plea for mercy. I am against the death penalty as such for anyone. But politicians like Parkash Singh Badal, Karunanidhi and Jayalalithaa only invoke mercy to suit their political exigencies.
Badal obviously is feeling pressure from the SGPC and extremist elements in the Akali Dal – if not, why does he not also ask for mercy for all prisoners on death row. If he is genuine and his plea to the Centre is not a political ploy why does he not amend the Penal Code and abolish the death penalty in Punjab by invoking Article 254(2) of the Constitution. The result will be no more hangings in Punjab, including that of Bhullar.
The same course could be followed in Tamil Nadu, where for a change Jayalalithaa and Karunanidhi, sworn political enemies, are asking for mercy for the same set of the accused. This legislative initiative alone will show the genuine concern of Punjab and Tamil Nadu legislators against hangings.
Bhullar’s plea was rejected first in 2005. But the file was sent to President Abdul Kalam, who sent it back to the Home Ministry seeking some clarifications. The matter, however, remained smugly in the Home Ministry till the Home Minister, P. Chidambram, sent it to the President in 2011 – this long gap did not, however, result in presidential mercy. The Supreme Court has affirmed the President’s decision though many feel that because of some earlier judgments and the number of cases which may be affected by this judgment, it would have helped in better clarification of the law if the matter had been heard by a Constitution Bench.
The court, while accepting that long delay in hanging may be one of the grounds for commutation of the death sentence to life imprisonment, has held the same cannot be invoked for an offence under TADA or similar statutes because these persons “do not show any respect for human lives --- the terrorists do not think even for a second about parents and dear ones of the victims … the families of those killed suffer the agony for their entire life.”
The court has rightly condemned the beastly and dastardly acts of terrorists, which must evoke anger and condemnation in every person. But then the court went on to make observations against human rights activists by ignoring the self-imposed rule of restraint wisely imposed by courts on themselves in “not making any remarks or observations with regard to those who are not before them” and further cautioning that “sweeping generalisations defeat their own purpose”. The judgment went on to say, “Many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights.” (emphasis added) The judgment, unfortunately, seems to have ignored the concern of human rights defenders and possibly did not have the relevant material before it when it repeated the usual bazar gossip that those who advocate abolition of the capital punishment by observing that they were doing it in the name of the “the bogey of human rights.” With due respect, one must say that these observations ignored that established human rights bodies like the People’s Union for Civil Liberties (PUCL) have unequivocally condemned the killing and taking of hostages by terrorists whether in Jammu and Kashmir or by the Army under the Armed Forces Special powers Act in the Northeast. Every activist feels the pain and anguish of the family, friends or the victims of terrorists – all will agree in calling terrorists the worst specimen of humanity. But then State, which is ultimate repository of law, cannot deviate from the path of civilised and humane conduct. Certain principles of humanism and legality even in the cases of worst excesses by terrorists have still to be dealt with under the law. It may be relevant to note that notwithstanding that in the US, which is also the target of terrorists, there is no move to restore the death penalty in various states which had abolished it a long time back.
The judgment also ignored the previous decisions of the Supreme Court which expressed its anguish even while upholding TADA against the violation of human rights thus: “It is heart-rending to note that day in and day out we come across news of blood-curdling incidents of police brutality and atrocities alleged to have been committed in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency…..” Similarly, the court reiterated its concern even when upholding POTA, “The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism.
If human rights are violated in the process of combating terrorism, it will be self-defeating — the lack of hope for justice provides breeding grounds for terrorism. In all cases, the fight against terrorism must be respectful to the human rights. Our Constitution laid down clear limitations on state actions within the context of the fight against terrorism.”
It needs to be emphasised that when human rights activists oppose the death penalty it is on the larger principle of human rights, which must be applicable to all cases. In support of the human right activist plea against the death penalty let me remind everyone what some of our greatest leaders of the country have said. Gandhiji said, “I cannot in all conscience agree to anyone being sent to the gallows; God alone can take life because he alone gives it”.
Similarly, Dr Ambedkar, the architect of the Constitution, said, “I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.” Similarly, the late socialist leader, Jayaprakash Narayan, said that “… death sentence is no remedy for such crimes.”
All that is suggested is that instead of the death penalty, let all such killers be sentenced to whole life and even without parole – many discerning persons would consider such life-term to be more severe than even the death penalty.
The writer is a former Chief Justice of the High Court of Delhi. |
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