"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Thursday, August 6, 2015

How India's stand on death penalty changed between 2 killings

After the British executed Bhagat Singh and his comrades, the nation resolved to do away with capital punishment. The mood changed on January 30, 1948 - the day Gandhi was killed.

On March 23, 1931, when the British government sent Bhagat Singh and his comrades Sukhdev and Rajguru to gallows, millions all over India mourned. Angry condolence meets, hysterical processions and strikes in factories, schools and colleges crystallised a national consensus that Independent India would have no place for capital punishment.

The mood was reflected in a forthright stand that the Indian National Congress took a week later. In its three-day Karachi session that began on March 29, 1931, the Congress passed a series of resolutions on Fundamental Rights and Duties, Labour, Taxation and Expenditure, and Economic and Social Programme.

Clause XIII of the resolution on Fundamental Rights and Duties declared: "There shall be no capital punishment."

The Karachi resolution, which was drafted by Jawaharlal Nehru and revised by Mahatma Gandhi, is significant because it provided the implicit socio-juridical basis upon which the modern Indian nation was to be founded and whose spirit reflected in the Indian Constitution. The All India Congress Committee that met on August 6-8, 1931 made this point clear by declaring that "any Constitution which may be agreed to on its behalf should provide for" the Karachi Resolution. Indeed, the Constituent Assembly, which deliberated between December 9, 1946, and November 26, 1949, incorporated most of aspects of the Karachi Resolution in the Indian Constitution.

But by the time the Constituent Assembly took up the issue of capital punishment, the adherents of Hindutva had sufficiently disoriented the mood of the nation by brutally killing Mahatma Gandhi on January 30, 1948. The culture of compassion that had created a national consensus against capital punishment in 1931 got sabotaged by the assassination.

Sanctity of human life

Thus, when on November 29, 1948, ZH Lari, a Muslim League member of the Constituent Assembly from the United Provinces (as Uttar Pradesh was called then), moved an amendment to abolish the capital punishment, many of the Constitution makers were horrified. The assassination of Gandhi by Nathuram Godse, an adherent of Hindutva, had hardened the attitudes of many of the Congress leaders who in 1931 had so enthusiastically backed the resolution against capital punishment.

Moving the amendment in the Constituent Assembly on November 29, 1948, Lari laid out 3 reasons why capital punishment should be abolished:

"The 1st consideration is that human judgment is not infallible. Every judge, every tribunal is liable to err. But capital punishment is irrevocable. Once you decide to award the sentence, the result is that the man is gone. [...] The 2nd consideration is that human life is sacred and its sanctity is, I think, accepted by all. [...] A man's life is taken away if there is no other way to prevent the loss of other human lives. But the question is whether capital punishment is necessary for the sake of preventing crimes which result in such loss of human lives. I venture to submit that at least thirty countries have come to the conclusion that they can do without it and they have been going on in this way for at least 10 years, or 20 years, without any ostensible or appreciable increase in crimes. [...] The 3rd consideration is that this is a punishment which is really shocking and brutal and does not correspond with the sentiments which prevail now in the present century."

While concluding, Lari said: "Lastly I would submit that the reformative element in punishment is the most important one, and that should be the dominant consideration."

After Lari moved the amendment, Vice President HC Mookerjee, who was in the chair, adjourned the House for the day.

Voices of opposition

The next day, on November 30, 1948, two members of the Constituent Assembly - both from the Indian National Congress - spoke on the issue and opposed the amendment seeking abolition of death penalty. The 1st, Congress leader from Bihar Amiya Kumar Ghosh, kept his opposition muted, wavering between technical and substantive reasons for his opposition to the amendment. The 2nd speaker, K Hanumanthaiah from Mysore, minced no words and even referred to Godse while arguing against Lari's amendment.

In his argument, Ghosh said: "I think that with the growth of consciousness, with the development of society, the state should revise a punishment of this nature but the proper place of doing such a thing is not the Constitution. We can do it by amending the Indian Penal Code where such penalty is prescribed for different offences."

He then added: "We are now passing through a transitional period, serious problems are confronting us, different sorts of situation are arising every day, and so it is quite possible that at times the State may require imposition of such grave penalties for offences which may endanger it and the society."

Hanumanthaiah's argument was straightforward. "If every man who takes away the life of another is assured that his life would be left untouched and it is a question of merely being imprisoned, probably the deterrent nature of the punishment will lose its value. [...] Therefore, if a man who kills another is assured that he has a chance of being released after seven or eight or ten years, as the case may be, then everybody would get encouragement to pursue the method of revenge, if he has got any. For example, let us take this Godse incident."

After a brief interruption by the Vice President, who asked him not to refer to "this particular individual", Hanumanthaiah continued: "If a man who resorts to kill an important or a great man and if he is assured that he would be released after 7 years or 8 years, as the case may be, he would not hesitate to repeat what he has done, and conditions being what they are today, it would be very unwise from the point of view of the safety of the state and stability of society, to abolish capital sentence."

Immediately after Hanumanthaiah concluded, Dr BR Ambedkar, chairman of the Constitution Drafting Committee, declared that he did not "accept the amendment".

The atmosphere, left vitiated by Gandhi's murder, was no longer conducive to carry forward the pledge the nation had taken following the execution of Bhagat Singh and his comrades. It's ironical that the assassination of the man who said an eye for an eye makes the whole world blind proved to be the turning point when India opted for capital punishment.

Source: scroll.in, August 6, 2015


State trains hangmen for future executions

File photo of a gallows at the Old Central Jail in Bangalore
File photo of a gallows at the Old Central Jail in Bangalore
Prisons dept asked to prepare 3-4 constables for the job; Maha has 41 on death row.

The state home office has directed the prisons department to train at least three to four constables as hangmen to supplement the number of executioners available in the state, which has now dwindled to 1, and prepare for future hangings. The sole remaining executioner, whose last hanging was that of Ajmal Kasab, on November 21, 2012, was tasked with carrying out Yakub Memon's death sentence, at Nagpur Central Jail last week.

"When hanging was common, we had many trained hangmen in our ranks, but they have since retired," a senior home ministry official told Mumbai Mirror. "We've asked the prisons department to train more for future jobs. It's a laborious process."

Maharashtra has executed 19 convicts since independence, with a marked lull between August 26, 1995 when Sudhakar Joshi, convicted of robbery and triple murder, was executed at Pune's Yerawada Jail, and Kasab's hanging.

The home ministry official said the department had to "exercise a lot of caution during Kasab's hanging as the executioner hadn't carried out a death sentence for a very long time". The state had transferred those officers who supervised the 26/11 terrorist's hanging at Yerawada Jail to Nagpur so that Memon's sentence could be carried out without trouble.

Senior superintendent of jails Yogesh Desai, who served in Yerwada, is now the senior superintendent of Nagpur Jail and Meeran Borwankar continues to hold the position of additional director of police (prisons). Both witnessed Kasab's hanging and were acquainted with the procedure. However, the act of executing condemned prisoners lies in the ambit of just one man's expertise, which led the home ministry to issue the directive seeking an increase in the number of executioners.

2 of Maharashtra's jails are equipped for hanging convicts - Nagpur and Pune, while those at Dhule and Thane hold such facilities, but aren't operational.

Anup Surendranath, of the Death Penalty Research Project, who resigned as the deputy registrar of the Supreme Court following Memon's hanging, said the government should be joining the debate on how death penalty is administered in the country instead of sending out the message that it is in favour of capital punishment by training constables to serve as hangmen. "Even during the Yakub Memon process, the mood was very much in favour of death penalty," he said. "But there are serious issues in terms of how we administer the death penalty. When a body like the Law Commission is seized of this issue, they should be joining the debate. This (training hangmen) will only send a message that we are going to hang more people in the near future. Now is not the time to say we are preparing to hang more people."

Maharashtra has 41 people on death row, including 2 women. While some of them have been sentenced by lower courts and are awaiting appeals and mercy pleas, a few have expended all forms of judicial recourse. Among these are Renuka Kiran Shinde and Seema Mohan Gavit, known as the Gavit sisters, and the Shakti Mill rapists.

The sisters were convicted of kidnapping 13 children below the age of 5 and murdering at least 5. The president rejected their mercy plea in April 2014, but they approached the Bombay High Court in August 2014, citing "delay in execution", after the Supreme Court commuted a few sentences citing this reason. The HC has stayed their execution.

The other prominent death row inmates are 3 men found guilty in the 2013 Shakti Mills gang rape case - they have appealed the sentence; Shivaji Shankar Alhat sentenced to death in 2003 for kidnapping and raping a minor over 20 times before strangling her to death in Junnar; and Rajendra Pralhadrao Wasnik, for raping and murdering a 3-year-old in March 2007.

Source: Mumbai Mirror, August 6, 2015

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