State governments can act to abolish death penalty

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 Punjab CM Prakash Singh Badal, DMK supremo Karunanidhi, and Tamil Nadu CM Jayalalitha only invoke mercy to suit their political exigencies.

Badal is being pressurised by extremist elements in the Akali Dal. If Badal is genuine and his plea to the Centre is not a political ploy why does he not amend Penal Code and abolish death penalty in Punjab by invoking Article 254(2) of the Constitution.
The result will be no more hanging in Punjab, including that of Bhullar. The same course could be followed in Tamil Nadu, where for a change, Jayalalitha 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 hanging.

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 2011. Then, Home Minister P Chidambaram sent it to the President. But this long gap did not result in presidential mercy.

The Supreme Court has affirmed President’s decision though many feel that because of some of 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 accepted that long delay in hanging may be one of the grounds for commutation of death sentence to life imprisonment. But it  held  that the  same  cannot  be invoked for offence under TADA or similar statutes. The rationale being that the convicts under this category “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 the human rights” (emphasis added). 

Ignored concerns

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 bazaar gossip of  “the bogey of human rights.”   These observations unfortunately have ignored the fact that established human rights bodies like People’s Union for Civil Liberties  (PUCL) have   unequivocally  condemned  the killing and taking  of hostages by terrorists, whether in Jammu & Kashmir or by the Army under Armed Forces Special Powers Act. 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 and legality, even in the cases of worst excesses by terrorists, have to be  still dealt with under law.

The judgment also ignored the previous judgments of the Supreme Court. In one such previous judgment in which the court while upholding TADA against violation of human rights stated: “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 ground 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 larger principles of human rights, which must be applicable to all cases. This is what 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, B R Ambedkar, the architect of our Constitution, once said: “...the proper thing for this country to do is to abolish the death sentence altogether”.  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.