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Monday, Jun 28, 2004

Opinion

Opinion - News Analysis

Commute capital punishment

By Garimella Subramaniam

Chennai: The death sentence awarded to the accused in the case of rape and murder of the 14-year-old Hetal Parekh in Kolkata in 1990 has understandably raised a controversy. Of course, the guilty must be punished to ensure that the ends of justice are secured. But the death penalty is retributive rather than punitive as it precludes the possibility of reform of convicts. Moreover, by

definition, it affords no room for correction of any miscarriage of justice. These considerations are paramount in the advocacy of abolition of capital punishment even for the most heinous of crimes.

While the President, A.P.J. Abdul Kalam, examines the clemency petitions against the execution of Dhananjoy Chatterjee under Article 72 of the Constitution, there appear to be compelling grounds for commutation of his sentence. In a case that has dragged on for 14 long years, there has been no direct witness to corroborate the involvement of the accused in the gruesome murder of the schoolgirl. The prosecution case has rested wholly on circumstantial evidence. Thus, the facts of the case are exactly of the kind in relation to which human rights groups have for long cautioned against handing down a sentence of death.

In the context of India, life imprisonment, unlike in the U.S., is not coterminous with the life of the convicted person. It is against this background that proposals for the commutation of the death penalty to life imprisonment have raised apprehensions that convicts once out in the open at the end of the life term, may prove a menace to society. While such fears may be justified, they reflect the failure of the reformative process within prisons which in reality are brutalising institutions.

One way of dealing with the problem is to amend the law so as to extend the system of parole to those who are released after serving a 14-year term in prisons. At present, parole is a benefit for prisoners serving their sentence and gives them an opportunity to live in freedom even before their jail term is over but under strict monitoring and guidance. In the case of life term prisoners who have completed their term in jail, the same system can be used as a check on them.

Ironically, the strong public opinion against the commutation of the execution of Dhananjoy has emerged in the wake of two exemplary recent instances of clemency from the kin of the victim. In November 1999, the Congress president, Sonia Gandhi, secured clemency to Nalini, one of the four sentenced to death for the assassination of her husband and former Prime Minister Rajiv Gandhi. In January 2000, Gladys Staines, the widow of the Australian missionary, Graham Stewart Staines, who was burnt alive with his two sons the previous year, recommended clemency for their murderers.

Capital punishment is fast receding from the world's moral landscape and several countries have removed the provision from the statute book. It is noteworthy that the abolition of the death penalty is a precondition for membership of the European Union.

Forty-one out of 45 Member States of the Council of Europe, a larger body than the EU, have signed Protocol 13 to the European Convention on Human Rights which prohibits capital punishment in all circumstances including for crimes committed in times of war. It is only proper that India should aspire to a similar status in the not-too-distant future.

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Commute capital punishment