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Death penalty: the Indian authorities’ incredible myopia

How much longer will the Indian state cling to the machinery of death, both of the judicial and extra-judicial variety?

A country that has had several experiences with stoked fires that see it engulfed in conflagrations might be expected to have learned to forestall, or at the very least to rouse itself at the first spark of trouble. Not India.

The case of a Sikh militant sentenced to hang for the 1995 assassination of Punjab state chief minister Beant Singh shows the country’s leaders have failed to learn from history.

A judge in the city of Chandigarh confirmed in mid-March the death sentence on Balwant Singh Rajoana, setting March 31 as the date for his hanging. Immediately and predictably, almost the whole of Punjab state and the Sikh diaspora in far corners of the globe got mobilized to oppose the sentence. Internet-based networks have proliferated, with myriad pages each drawing tens of thousands of adherents.

Few among those posting on these pages oppose the death penalty in principle. Most have been using the occasion to harp on about long-held and serious grievances against the Indian state. They recall Operation Blue Star, the Indian army assault to flush out Sikh separatists from the Golden Temple in Amritsar in June 1984 that left hundreds dead. Later that year, following the assassination of Prime Minister Indira Gandhi by her Sikh bodyguards, members of her Congress party carried out a pogrom against Sikhs, killing at least 3,000 men, women and children. Not only the Sikhs, who make up just two per cent of India’s population, but much of the rest of the country was appalled by the events.  These memories are being stirred up by militants exhorting Sikhs in Punjab and worldwide to mobilise against the Indian state.

The Punjab government of the main Sikh political Party, the Shiromani Akali Dal, has fallen in line with popular sentiment against the hanging of Balwant Singh Rajoana. Punjab Chief Minister Parkash Singh Badal made a special statement in the state’s legislative assembly. “The jail superintendent is duty-bound to satisfy himself that no appeal for relief by any co-accused in such [a] case was under consideration of any court… The Superintendent of the Central Jail, Patiala, is of the view that … this case had many legal and constitutional shortcomings, loopholes and flaws, which made the execution of the court orders impossible within the ambit of law,” Badal is quoted as having said.  It has taken a jail official to hold forth on the constitutionality of a death penalty case in the world’s largest democracy teeming with politicians and judges!

Rajoana has refused to appeal against his death sentence and India’s Supreme Court has rejected petitions filed by a lawyer and a human rights organisation seeking its intervention. Two Supreme Court judges said that only the convict can file an appeal. A strange stand for a court to take in a death penalty case! Even in China, which regularly gets the stick for being the world’s champion executioner, all death penalty cases have to be heard by the Supreme People’s Court since 2007 and recent amendments seek to ensure that when a defendant does not appoint a lawyer, the courts or the prosecutors do so.

India had 110 reported death sentences in 2011 and up to 500 people are believed to be on death row in the country.  Death sentences are mandatory for many crimes in India even though jurists worldwide acknowledge that such mandatory penalty is plainly unjust. Coincidentally, even as the Rajoana’s life hung in the balance, South African jurist Christof Heyns, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions was in India on a mission and pointed out that whereas the Indian Supreme Court had advised in 1980 that the death penalty should be used in the “rarest of rare” instances, “the list of crimes for which this sentence may be imposed is still much wider than the one provided for under international law.” 

Moreover, as Amnesty International has pointed out, India is among a few countries where the scope of the death penalty has actually been expanded. This makes a mockery of the “rarest of rare” precept set out in Bachan Singh vs State of Punjab.  Instead of defining and restricting – if not actually codifying or quantifying – the use of the death penalty, the Indian Supreme Court has left a gaping hole through which lower court judges seeking cheap publicity can swing their cynical gavels and claim that the case they are handling is one of the ‘rarest of rare’ variety.

Keeping people for long periods on death row amounts to psychological torture but India blithely holds hundreds, to whose ranks Rajoana returns, now that India’s Home (Interior) Ministry has decided to consider the petitions filed by a Sikh religious organisation to spare his life. It remains to be seen whether the government of Prime Minister Manmohan Singh makes up its mind or passes on the case to a successor government.

The Akali Dal’s electoral ally, the Hindu nationalist Bharatiya Janata Party, has failed to commit itself openly in the Rajoana case. The BJP, the leading opposition party in the national parliament, tends to be virulently pro-death penalty when it comes to some Muslim convicts it deems ‘terrorists’. But this time, it has preferred pussyfooting round the issue, one or two of its leaders going so far as to vaguely suggest that clemency appeals were part of the process of law taking its course.

Clearly the Hindu nationalist understanding of how the law has to operate varies according to the religion of the person accused. It defends to the hilt Chief Minister Narendra Modi of Gujarat state who is widely blamed for the deaths of at least 2,000 Muslims in a pogrom in 2002 but opportunistically joins in the chorus for bringing to book Congress party leaders implicated in the anti-Sikh pogrom of 1984.

Such parochial approaches are to be seen among other groups too. In August 2011, after three Tamil men convicted for the 1991 assassination of former Prime Minister Rajiv Gandhi won a stay of execution from the Madras High Court, the legislature in Tamil Nadu state, of which Madras (renamed Chennai) is the capital, passed a unanimous resolution calling for the commutation of the death sentences on the three men. But Tamil politicians stay silent in the case of death penalties pronounced on people elsewhere in India. Chief Minister Omar Abdullah of Jammu and Kashmir state wondered aloud what the reaction would be should the legislature in his state pass a resolution similar to the one in Tamil Nadu, demanding commutation of the death penalty imposed on Mohammed Afzal Guru, a Kashmiri convicted of conspiracy in the December 2001 attack on the parliament in New Delhi.

The Sikh leaders calling for Rajoana’s life to be spared will likewise keep their counsels to themselves when someone elsewhere in India is condemned to death. Meanwhile, the Indian state keeps drifting, without making up its mind on the nearly 500 people on death row. The last time anyone was hanged was in 2004 in West Bengal state after a hysterical campaign partly led by the wife of the state’s Marxist chief minister against a man convicted of the rape and murder of a 14-year-old.

All the while, of course, democratic India continues to get rid of a lot of insurgent groups using a method popular with security forces in totalitarian regimes – extrajudicial killings, euphemistically referred to by Indian officials and the media as “encounters”.

In fact, chief minister Beant Singh, whose killing led to the death penalty being imposed on Rajoana, was accused of having unleashed state terror during his term of office in Punjab (1992-1995), giving the police a green light to carry out extra-judicial killings against Sikh militants. A number of fake “encounters” were later reported to have resulted in the deaths of innocent people labelled “separatists”.

The dithering over Rajoana’s case is once again stoking the separatist fire. How much longer will the Indian state cling to the machinery of death, both of the judicial and extra-judicial variety?

About the author

N. Jayaram is a journalist now based in Bangalore after more than 23 years in East Asia (mainly Hong Kong and Beijing) and 11 years in New Delhi. He was with the Press Trust of India news agency for 15 years and Agence France-Presse for 11 years and is currently engaged in editing and translating for NGOs and academic institutions. He writes Walker Jay's blog.


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