Slave To Fate, Chance, Presidents And Law

Gautam Patel

There are not many positive things to take away from the case of Mohammed Ajmal Kasab, the surviving terrorist of the 26/11 attacks on Mumbai, whose death sentence the Supreme Court recently confirmed and upheld. But there is a victory of sorts here, and it belongs to our judiciary for the manner in which it handled a difficult case with strong international overtones.

In the face of unspeakable horror, resisting what must have been the strongest temptation to lash out, the tone of the Supreme Court’s decision in the Kasab case is calm, gentle, grieving.¹ Above all, there is an uncommon grace and breadth of mind: the decision ends with six paragraphs that are in themselves unusual. The Supreme Court thanks appearing counsel, noting at some length the quality of arguments (“luminous”, “warm”, “stimulating”, “cool and clinical”, “free from heat, rancour or anger”), and then makes special mention of the trial court judge — now a judge of the Bombay High Court — Justice M. L. Tahaliyani, saying that he is a true flag bearer of the rule of law and that his exemplary record of the trial should be required study at the judicial academies.²

Even more remarkable is the quality of the defence by Raju Ramachandran, Senior Counsel appointed to represent Kasab. Leave aside the technical elements: this is what lawyering is about. This is what all lawyers should aspire to. Against overwhelming odds, Mr Ramachandran mounted a compelling defence: “having taken the path of the rule of law, we must walk the full mile; we cannot stop halfway and fall short of the standards we have set for ourselves”.³ The highest constitutional principles in matters of life and liberty were not followed, he said; injustice was done to Kasab. Mr Ramachandran may have lost his case, and rightly, but he, his opponent Gopal Subramaniam and the Supreme Court succeeded in achieving something far more lasting and important.

Injustice done to Kasab? That seems counter-intuitive. That is in fact the strength of Mr Ramachandran’s case: an appeal to reason, not emotion. It is, indeed, hard to think of the Kasab case without being driven to instant, unthinking rage: pictures of the blood-smeared floor of the CST train station, of Kasab dressed like a college student but armed to the teeth, and, above all, his apparent complete indifference to what he was doing. The immediate reaction therefore is, always: hang him. Even at a theoretical level, with no reference to Kasab, suggest the abolition of the death penalty and the common response is, yes, fine; but only after they hang Kasab.

Should we? Should we hang anybody? Should the law permit this? In an article here in March, I argued that it is time for the death penalty to go because, apart from anything else, it is both error-prone and irreversible. In July this year, 14 former judges of the Supreme Court and our High Courts wrote to the President asking that he commute to life imprisonment the death sentences of 13 convicts. The appeal was initiated by a Yug Mohit Chaudhry, a Bombay High Court lawyer of ferocious tenacity. The appeal does not seek the abolition of the DP, whatever the personal views of signatories. It points, instead, to the significant errors and mistakes in administering this law, and to the Supreme Court’s own admission that it went wrong in several DP cases. Specifically, that the standard set by the Supreme Court in Bachan Singh’s case of 1980 — that the DP is the exception to the general rule of life imprisonment as a maximum sentence; that the DP should be imposed only in the “rarest of rare” cases; and that in imposing it, courts should look at both crime and criminal — was upended in a later case, Ravji (1996), decided by a bench of fewer judges, which said it is the gravity of the crime that is determinative, not the criminal; and that subsequent cases incorrectly followed Ravji.⁴ The result was an incorrect application of the law and the erroneous sentencing to death of many. That mistake was discovered only in 2009 in yet another case, Bariyar, too late to save two men, by then already hanged by the law.⁵

This “rarest of rare” standard is puzzling. It admits of no absolute or objective measure. What is rare to one might be common to another. Two orders from the extremities of the judicial pyramid show how uneven this standard is. A few days after the Kasab decision, a special court in Ahmedabad convicted Maya Kodnani and Babu Bajrangi and sentenced them to long terms of imprisonment for their role in the massacres at Naroda Patiya during the 2002 Gujarat riots. Both have been convicted, among other things, of murder. Between Kasab, who arrived as an outsider and massacred people he did not know, and Kodnani and Bajrangi who turned on their own townspeople and neighbours in ways equally horrific, why is one “rare” and the other not? In the Gujarat riots cases lies yet another contradiction: many of those convicted of the Godhra train massacre received death sentences. Was Godhra rare, but Naroda Patiya not? What nice points of distinction enable us to decide who dies and who lives?

Two of the signatories to the appeal to the President, Justice AK Ganguly and Justice AP Shah, have in separate interviews expressed their personal views in favour of abolishing the DP. Both make compelling arguments. “The legal safeguards aimed at avoiding a miscarriage of capital punishment have failed to deliver,” says Justice Shah. “I cannot say today that the death penalty is unconstitutional, but freakish and random imposition of the death penalty is certainly unconstitutional,” is Justice Ganguly’s view.

They are in excellent company. Many writers (including Yug Chaudhry) have explained at length why it must go: personal predilections, prejudice and bias, and individualistic aberrations show that the DP is inherently unreliable. Justice John Paul Stevens of the US Supreme Court reversed course after 32 years, arguing against the DP’s constitutionality in a powerfully worded article in the New York Review of Books, says that “the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes’”. Philosophers, writers and leaders, too, have spoken against it. “Capital punishment is the most premeditated of murders,” said Albert Camus, and Desmond Tutu spoke in much the same language when he said that “to take a life when a life has been lost is revenge, not justice”.

But perhaps the most striking indictment of capital punishment comes from those to whom it falls to oversee its administration; people like Lewis Lawes, the warden of New York’s Sing Sing prison in the 1920s and 30s: “As if one crime of such nature, done by a single man, acting individually, can be expiated by a similar crime done by all men, acting collectively.”

The death penalty must go, for it obliterates distinctions fundamental to our existence: between revenge and justice, between reason and emotion, between being primitive and being civilized, between being human and being inhuman.

 

 

A shorter version of this article under another title first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 7 September 2012.