The politics of death by hanging

Ajmal Kasab’s execution has renewed the debate on capital punishment –not just the pros and cons, but the politics of capital punishment as well.

“There were around 300 prisoners in the queue before Kasab. These 300 include Afzal Guru (connected to the) 2001 attack on Parliament, Balwant Singh Rajaona (accused in) the assassination of former Punjab Chief Minister Beant Singh, and the three assassins of former Prime Minister Rajiv Gandhi. They have been awaiting execution for several years. What made Kasab jump the queue?” asks journalism student Vijay Kumar, who was one among many who protested online against the secrecy surrounding Kasab’s hanging.

“In the case of Kasab, the norms were completely different since the beginning,” said J.K. Tripathy, Chennai ADGP (Prisons). “Kasab’s case had caught wide attention. As terrorism is a bigger threat the handlers of terror attacks, like Kasab, needs to be treated separately.”

Highly questionable

This view was pointed out by many as the reason why the judiciary was almost forced to give Kasab the death sentence. But the verdict comes at a time when the death sentence is being severely questioned. Back in 1983, the Supreme Court of India in a landmark judgement said that the death sentence should be given only in “rarest of the rare cases”, which involved “torture, barbarity, humiliation or degradation”. As Seema Sengupta pointed out in The Guardian , this doctrine has not had the desired effect with the same court confirming capital punishment in 40 per cent of the cases that it handled in the decade starting from 1980, as against 37.7 per cent in the previous decade.

Big difference

A Chennai-based advocate, Mr. Gopisunder, points out the stark difference in the way the Government has treated the Rajiv Gandhi assassins and Ajmal Kasab. The assassins of Rajiv Gandhi have now spent two decades on death row. Last August, the President finally rejected their mercy petition, following which they approached the court unsuccessfully trying to use the plea of delay in the process to earn commutation of the sentence.

“The law states that a delay in the judicial procedure is a valid ground for commuting the sentence. Still the Government was unwilling. In the counter-affidavit in response to their petitions, the Central Government said that however long it may be is not a mitigating circumstance nor can it be construed as a valid ground for commutation of the death sentence and in any event it does not reduce the gravity of the crime,” said Gopisunder.

“On the other hand look at Kasab’s case. Even if the President has rejected clemency, the judiciary has every power to review and even invalidate the President’s decision (taken on the basis of the Home Minister’s recommendation) if vitiated by bias or for any other wrongful reason,” he said. “This constitutional right for seeking a judicial review was not informed to Kasab and that makes this execution a blot on our Constitution.

Case for abolition

Kasab is only the third person to be executed in the country since 1995, a record that is in tandem with the international efforts to abolish the death penalty. However, India was among 39 countries that voted against a UN General Assembly draft resolution just a day before the execution calling for abolishing the death penalty, saying every nation had the “sovereign right” to determine its own legal system.

“No government will actually confess to its real motives, but one thing is apparent: Only politically convenient convicts will be executed,” R. Jagannathan wrote in an article published on . “In Kasab’s case, he was a Pakistani national, and there was no political pressure to keep him alive in India… We are now in a situation where only politicians will decide who to hang – and that too when it is beneficial to them politically.”

In India’s political set-up where many of the regional parties favour capital punishment, abolishing the death penalty could be complicated. Delaying executions with convicts rotting in prison seems the easy and most convenient option.

(Nidheesh graduated from St Joseph’s Devagiri College, Calicut, before joining Asian College of Journalism.)

COMMENT NOW