The morality of death penalty has again come to the forefront by the latest Supreme Court judgment rejecting Bhullar's plea for mercy. I am against death penalty as such for anyone. But politicians like Badal, Karunanidhi, Jaya-lalithaa only invoke mercy to suit their political exigencies.
Badal obviously is feeling pressurised by the SGPC and extremist elements in the Akali Dal—if not, then why does he not also ask for mercy for all prisoners on the death-roll? If Badal is genuine and his plea to the Centre is not a political ploy, why does he not amend the Penal Code and abolish 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 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 Chidambaram, the Home Minister, 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 of the 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 the long delay in hanging may be one of the grounds for commu-tation of death sentence to life imprisonment, however has held that the same cannot be invoked for offences 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 the terrorists, which must evoke anger and condemnation in every person. But then the Court went on to make observations against the 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”. Further, cautioning that “sweeping generalisations defeat their own purpose”, the judgment said: “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 right defenders and possibly did not have the relevant material before it when it repeated the usual bazaar gossip that those who advocate abolition of capital punishment by observing that they were doing it in “the bogey of human rights”. With respect, these observations ignored that established human rights bodies, like the People's Union for Civil Liberties (PUCL), have unequi-vocally condemned the killings and taking of hostages by terrorists, whether in Jammu and Kashmir or by the Army under the Armed Forces Special Powers Act. the North-East, or the Maoists though at the same time empha-sising the culpability of the state agencies. Every activist feels the pain and anguish of the family, friends of victims of the terrorists—all will agree in calling terrorists the worst specimen of humanity. But then the state, which is the ultimate repository of law, cannot deviate from the path of civilised and humane conduct.
Certain principles of humanism, 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 USA, which is also the target of terrorists, there is no move to restore death penalty in various States which had abolished it long time back.
The judgment also ignored the previous decisions of the Supreme Court which expressed its anguish even while upholding TADA against 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 death penalty it is on the larger principle of human rights, which must be applicable to all cases.
In support of the human rights activists' plea against 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 socialist leader, Jayaprakash Narayan, said that “.....death sentence is no remedy for such crimes”.
All that is suggested is that instead of 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 death penalty.
The author is a former Chief Justice of the Delhi High Court.