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NO NOOSE IS GOOD NEWS

Navneet Bhullar is a woman on a mission. For two decades, she has struggled to save the life of her convicted husband. Now Bhullar is on what could be the last leg of the campaign — his release from jail.

Last month, the Supreme Court commuted Devinder Pal Singh Bhullar’s death sentence to life on grounds of delay in deciding his mercy plea and on the basis of his medical condition. Termed a terrorist with the Khalistan movement, he was convicted for bomb blasts that shook Delhi in 1993. Subsequently sentenced to death, his mercy plea was rejected by the President in 2011.

“Having spent 19 years and three months in jail, without any parole ever, he should now be released soon,” says Bhullar, 47, who spent only two months with her husband in their 22 years of marriage. These days, the Canada resident’s life revolves around her lawyer’s office and the hospital where her husband is being treated for depression. “The death sentence has become a political tool. And so have mercy pleas and remission,” she adds.

The issue of death penalty is back in the news. After the December 2012 gang rape in Delhi, the law dealing with rape was revised. The amended Section 376E of the Indian Penal Code (IPC) provides for death in cases of repeat offenders. Earlier this month, a sessions court in Mumbai sentenced three people to death for rape because they were repeat offenders.

But the country has been witnessing conflicting views on execution. In 13 months, President Pranab Mukherjee has rejected 13 mercy petitions awarding the death penalty to 17 convicts — the highest for a President in the last 16 years. But the judiciary has seemingly taken a different turn. In a landmark judgment in January, the Supreme Court commuted the sentence of 15 condemned death row convicts to life. The decision was taken in view of the “inordinate delay” by the government in deciding on their mercy pleas. The court on similar grounds commuted the death sentence of Rajiv Gandhi’s killers to life in February. This year, 19 death row convicts have been granted life by the Supreme Court.

The President’s powers to grant pardon arise from Article 72 of the Constitution which empowers him to pardon, grant reprieve or suspend, remit and commute the sentence of a person convicted of any offence. The President is guided by the home minister in his decision.

Among the first mercy petitions to be disposed of by Mukherjee included that of Mumbai 26/11 terrorist Ajmal Kasab. He was executed in November 2012 which was the first hanging after 2004. Four months later Afzal Guru was hanged for his involvement in the 2001 Parliament attack case.

Of course, many believe that the death penalty is an essential part of justice. Execution, they argue, is a deterrent to crime. “In terms of punishment, humans fear death the most. It has both sociological and psychological impact,” says Supreme Court lawyer Pinky Anand. “It works as a punishment to criminals and as a deterrent to society.”

Anand doesn’t agree with people who argue that the death penalty doesn’t bring down the crime rate. “There can never be any statistics to show how many people stopped committing a crime for fear of this punishment,” Anand adds.

Global human rights watchdog Amnesty International believes India is not giving a clear message on where it stands. “While the President has a record number of rejections of mercy petitions, the Supreme Court has shown the way for a progressive and humanitarian India where the degrading practice of executions has no place,” says Divya Iyer, senior researcher, Amnesty International India.

According to Mumbai-based human rights activist and lawyer Yug Mohit Choudhry, the apex court’s position is not new. “In 1982, the Supreme Court in the case of Bachan Singh vs State of Punjab upheld the constitutionality of Section 302 of the IPC, which prescribes the death penalty as punishment for murder. And in so upholding its validity, the court prescribed that the death penalty be accorded only in the ‘rarest of rare cases’,” Choudhry explains. “While earlier, death was the norm and life term an exception, after the Bachan Singh case our courts turned this around.”

Despite these moves, India was among the 39 countries in 2012 which voted against a UN General Assembly draft resolution calling for abolishing the death penalty. India had argued that each state had the sovereign right to determine its own legal system.

The apex court’s concern, on the other hand, is over not just the long wait that people on death row have to go through, but also over cases where death is not merited. Between 2000 and 2011, 130 death sentences were pronounced by the trial courts on an average every year. “But only three or four were upheld by the Supreme Court every year,” Choudhry says.

Amnesty International’s latest report says that there are 435 convicts on death row with appeals at various stages — from high courts to clemency petitions awaiting the President’s nod. In the last 18 years, only three people have been executed, with the last two executions happening in the last two years.

But the December 16 incident has triggered a move towards an increase in death sentences. “Death sentences by trial courts since then are at their peak,” says Anup Sundernath, who heads the death penalty research project at the National Law University, Delhi. The project which will come up with its report later this year highlights the fact that sexual crimes are attracting death from the trial courts as a norm now.

“The executive wants to show that we are tough on crime and by rejecting mercy petitions they think they can contain the current public outrage against lawlessness,” Choudhry says.

Last year, 14 retired judges wrote to the President, pointing out that the Supreme Court had erroneously given death to 15 people from 1996. Two of them were hanged. The judges called this “the gravest known miscarriage of justice” since Independence. “Yet in recent months, our government has shown an alarming tendency to implement the death penalty,” rues Saswati Debnath, a senior researcher with Human Rights Law Network, a Delhi-based non-government organisation.

Many believe that the time has come for the government to reconsider its position. “The government should now build on these progressive judgments to review the legality and necessity of capital punishment, declare an immediate moratorium on executions, with a view to abolishing the death penalty,” Iyer says.