DEATH PENALTY MUST STAY Author - VT Joshi

Even more than two months after Dhananjoy Chatterjee was hanged on 14th August 2004 for the heinous crime of rape and murder of a young school girl he was supposed to protect as a security guard, the controversy refuses to die down over the propriety or otherwise of capital punishment in a civilized society.

Its latest manifestation was an animated discussion among a group of university students at a seminar organized by Makhanlal Chaturvedi National University of Journalism in Bhopal recently. A refreshing point was made by one of the undergraduate students. To those who demand abolition of the capital punishment he posed a ticklish poser: Should Peter Bleach not have been hanged for "waging a war against the State" by dropping arms on Purulia, an integral part of the Indian nation (in West Bengal).

It may be recalled that the Peter Bleach case is one of the saddest stories of misplaced magnanimity of India's political leadership in stark contrast to the rejection of the mercy petition of Dhananjoy Chatterjee. Between the two which is the more "rarest of the rare cases" is a moot point.

And there hangs a tale. Long before Peter Bleach, a British national, was set free through extra constitutional means five Latvians were also similarly released. All of them were found guilty of the most heinous, unpardonable crime of dropping lethal arms on Purulia some six years ago and were duly convicted by courts and jailed. The principal perpetrator of this blatantly anti-national crime is yet to be booked and is reported to be roaming about in Western Europe without let or hindrance.

In any other country, civilized or otherwise, there would have been a summary trial and all the six - (Bleach and five Latvians) - would have been hanged long ago. But the cruel irony of their release followed the "friendly requests" from British Prime Minister Tony Blair in one case and Russian President Putin in the other. And all for what? Some mythical diplomatic gesture despite the gravity of the crime of the perpetrators and the far graver implications of their release through unpardonable, arbitrary, extra constitutional means.

Was it beyond the ken and capacity of our ruling political leaders (of the BJP in one case and the Congress in the other) and their diplomatic cohorts to convince Messrs. Putin and Blair that their requests were thoroughly untenable in view of the gravity of the offence their respective nationals had committed and were duly convicted? Or was it that our reigning leaders and diplomats were so mesmerized by their western counterparts that they felt powerless to resist their charms and reject their unwarranted pleas for the release of the convicts. Once Putin's "request" was accepted and the Latvians were set free without even the pretence of legal formalities, Tony Blair's could hardly be turned down. And Peter Bleach's release had to follow. As surely as summer follows winter.

It was not without a trace of supreme irony. For sometime before Dhananjoy Chatterjee was hanged on the eve of the Indian Independence Day Peter Bleach happened to be his jail mate and knew him pretty well. Bleach expressed unbounded sympathy for Dhananjoy, and stated, after his release, that "the poor (like Dhananjoy) rarely got fair trial and justice in India". While this observation might be largely true it was rather amusing to hear it from the mouth of Bleach who apparently conveniently forgot that he himself was the most undeserved beneficiary of Government of India's extra-constitutional

Contrast this with the Singapore prime minister's refusal to oblige US President Bill Clinton and release an American boy found guilty and convicted of a minor traffic offence.

No wonder the Indian state has long been truly dubbed as a "soft state". Indeed it is soft for the rich and the mighty, and harsh to its own poor citizenry in almost everything that matters. Indeed the very concept of governance has become VIP- oriented. Since the tribe of VIPs is bulging at the seams, the administration is loaded in favour of VVIPs, the "creamy layer" of the VIPs, to borrow an evocative phrase from Patna High Court's obiter dicta.

According to reports there are some 55 convicts awaiting the gallows in various parts of the country. Most of them reportedly belong to the poor and deprived sections of society without having had the benefit of competent defense lawyers who are, in any case, very expensive and far beyond their means. Quite a few are most likely to have "earned" their conviction in cases relating to old land disputes - unlike possibly that of Dhananjoy who was convicted of rape and murder. It must also be sadly noted that deplorably quite a few go scot free despite their serious crimes because of their wealth, social status and ability to influence the course of justice through powers that be.

In the raging debate over television as well as in the print media that preceded and followed the hanging of Dhananjoy two mutually irreconcilable, extreme positions were generally taken by the protagonists and opponents of the provision of capital punishment: That a perpetrator of a serious crime like murder must meet his desserts and pay the price with his life even if only to atone for the sin of having extinguished the life of the victim. The opposite view is that death penalty has not helped to reduce the incidence of murder in any significant manner over the ages but has only "brutalized" both the state and society. The protagonists accuse them of insufficient concern and sensitivity for victims and the plight of their kith and kin.

Both sides have advanced learned legal and philosophical arguments. According to the one stern opponent of the capital punishment and a perceptive analyst, Anil Chawla, the fault lies in our very judicial system inherited from the British. Under this system, he argues strongly that it is not the duty of a court to arrive at the truth. A judicial officer is supposed to listen to the lawyers of the two sides and give a judgment based on the lawyers' presentation. If a lawyer makes a mistake or is incompetent it is his client who suffers. If a court orders an accused to be hanged and a higher court reverses the lower court's order there is no compensation for the accused for having been made to go through the trauma of fear of death. The lower court is not even pulled up.

Recently, in Madhya Pradesh some 18 judicial officers were dismissed on various charges of corruption on the recommendation of the High Court. Will the judgments given by these 18 defaulting judges be reviewed to rectify the miscarriage of justice, Chawla asks pertinently.

He cites the famous Indira Gandhi assassination case in which one of the accused was acquitted by the Supreme Court and saved from the gallows after he had been sentenced to death by a lower court and confirmed by the High Court. His acquittal came after the famous criminal lawyer Ram Jethmalani argued his case before the Supreme Court. (Incidentally Jethmalani is believed to charge normally a lakh of rupees (Rs. 100,000-) or more for a single appearance in court in a criminal case).

Indian constitution is said to provide some sort of a "safety valve" in the provisions, empowering the President to entertain mercy petition from convicts sentenced to death, and to grant pardon or commute the sentence to life imprisonment. In practical terms however these provisions (under articles 72 for the President and 161 for Governors of States) are meaningless for the convicts if it is obligatory for the President (or the Governor) to be wholly guided by the views and advice of Home Ministry and Council of Ministers and has to act merely as a "rubber stamp".

Unless the President exercises his discretion independently and has the wherewithal to come to a well-considered sound judgment of his own, unfettered by the legal jargons, which bind the courts, it is obvious that the "safety valve" provision of granting clemency has no value. As Chawla argues, while dealing with mercy petitions the President has to apply his mind and heart like a human being without the technicalities that a judge is subjected to. Viewed from such a perspective Dhananjoy deserved to be saved from the gallows, he fervently pleads.

Mr. Chawla remonstrated that foreign nationals who were convicted in the Purulia arms dropping case were so easily pardoned. Similarly in the extradition case involving Abu Salem and his companion Monica the Government of India so readily gave an undertaking to Portugal that the President would use his powers under Article 72 to spare them the gallows if so convicted and sentenced by the courts. But there was no such consideration in the case of Dhananjoy, he laments.

Even with all the erudite arguments of those who demand the abolition of the capital punishment altogether the Peter Bleach case sticks like a lump in the throat. His and his Latvian accomplices' case was certainly the "rarest of the rare cases"-- (as conceived by the Supreme Court in a general context)--which most certainly deserved death sentence without a second thought. It is the paradox of the Indian situation that they were let off merrily while the Dhananjoy case may still be debatable whether the Calcutta security guard was sent to the gallows, rightly or otherwise, even after he had virtually spent a 14- year life-term in jail due to laws' notorious delays or on any other grounds including the inept handling of his case by the administration.

In any case the need for continuance of the provision of capital punishment on the statute books cannot be gainsaid or dispensed with. If the government had acted in time and sent the likes of Azar Masood to the gallows for their "rarest of the rare" crimes in Kashmir it is possible to argue that there would have been no hijack of IC- 814 to Kandahar and the attendant misery and the revival his jihadi atrocities from across POK (Pak occupied Kashmir). Assuming that the provision of capital punishment is removed from the statue book the State will be left with no power to punish the likes of Peter Bleach, as indicated by implication by the undergraduate participant in the debate referred to in the beginning of this article. It would be begging the question if, as one might say, the likes of Peter Bleach and others get released any way -- courtesy government's misplaced, imbecile magnanimity, a diplomatic hara-kiri!

Tailpiece: The electronic media played a havoc in repeatedly depicting the images of the gallows and how the ropes were waxed and prepared to hang Dhananjoy and such other gory details. Three boys playing the "hanging game" lost their lives soon thereafter at places far apart from each other like Calcutta and Bombay, according to reports. Believe it or not, a colleague of this writer was narrowly saved from certain death while enacting the hanging game with a few other boys in their younger days. He was playing the role of Bhagat Singh in the aftermath of his martyrdom 75 years ago. Such was the countrywide upsurge of the nationalist spirit after Bhagat Singh, Sukhdev and Rajguru were hanged by the British in Lahore jail on March 23, 1931. By a strange quirk of history March 23 happens to be Pakistan Day.

VT Joshi

8 October 2004

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VT JOSHI has more than forty years of experience as a journalist. He retired from THE TIMES OF INDIA in 1989. During 1985-89 he was the Special Correspondent of THE TIMES OF INDIA in Pakistan. His books "PAKISTAN: ZIA TO BENAZIR" and "INDIA AT CROSS ROADS" (co-author GG Puri) were widely reviewed in both India and Pakistan.

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