Published: August 21, 2004 

Asian Tribune

Different court verdicts on death sentences for rape and murder pronounced hardly five days after the August 14 execution of Dhananjoy Chatterjee at Kolkata's Alipur Central Jail deserves serious attention in the ongoing discussion about capital punishment.

1) On August 18, Ahmedabad Additional City and Sessions Judge Z.K. Sayyed sentenced to death Kishen Velabhai Marwadi (20) for raping and murdering 6-year-old minor Gomi Keshavbhai Madhabhai on February 27, 2003. The final arguments before the verdict was pronounced found a mention of Dhananjoy's case by the prosecution who contended that Kishen deserved nothing less than death sentence as the crime he committed was "much more brutal and inhuman" than Dhanonjoy's offence of killing a 14-tear old girl.

2) On August 17, the Apex Court Division Bench comprising Justice K G Balakrishnan and Justice A R Lakshmanan commuted the death sentence awarded to Rahul alias Raosaheb (29) to life term. The Additional Sessions Judge, Pune, sentenced him to death on August 29, 2002, which was later confirmed by Bombay High Court, for raping and murdering four-and-half year old minor girl on November 24, 1999. Before commuting his death sentence, the Apex Court had stayed the execution on March 26, 2004. One of the defense pleas was that he was aged only 24 when the crime was committed, and that he had no past crime records. 3) On August 19, the Apex Court Division Bench comprising Justice B. N. Agrawal and Justice H. K. Sema reversed the Bombay High Court's acquittal verdict of Man Singh Rathore to life sentence. Earlier, the trial court sentenced him to death for raping and murdering a fifth standard student, Ranjana, on December 13, 1994. The reversal verdict came upon an appeal filed by the Maharashtra State on the ground that the High Court had committed a serious error, resulting in miscarriage of justice. The Apex Court, however, rejected the plea to award the extreme penalty of death since the murder was "brutal and diabolic" and, instead, awarded only life sentence.

The importance given to the age-factor of both the victim and accused in the above-cited cases to award or commute capital punishment was striking. However, hardly any apparent uniform criteria were maintained in weighing the age factor. It is equally striking that the lower trial courts are more pro-capital punishment than the Apex Court. This is evident from the Ahmedabad Additional City and Sessions Court awarding death sentence to the 20-year old Kishen Marwdi on the charge of raping and killing the 6-year-old Gomi as against the Apex Court's finding it fit to award only life sentence to Rahul (29) although the Pune trial Court sentenced him for death for raping and murdering a four-and-half year old girl. Same was the case with the Apex Court striking down the death sentence imposed on Man Singh Rathore by both the trial court and High Court for raping and murdering the fifth standard student, Ranjana.

This also raises the question as to why the same Apex Court was reluctant to show the same leniency while turning down the repeated appeals to save Dhananjoy from the ultimate gallows. In Rahul's case above, one of the arguments was his 24-year age when he committed the offence. If that is so, Dhananjoy, hanged at the age of 42, was 28 when he committed the crime 14 years ago. Worse still, he was hanged after remaining in prison for 14 full years - which is more than the jail term for life sentence. At the same time, the Ahmedabad Court served death sentence without any qualms to hardly 20-year old Kishen. One can only expect a reprieve for Kishen from the Apex Court as shown to Rahul.

The most important question related to capital punishment is whether death can be construed as a form of punishment given by the State? Human rights defenders oppose to capital punishment term it as "judicial murder" by the State. In general terms, murders are committed for the sake of profit or revenge. Admittedly, this general social psyche cannot be the guiding principle for the State to kill a person under their custody with judicial sanction. It is said that such State executions are taking place as a deterrent punishment so that others within the society would not venture to commit similar crimes in future. However, there is no figure available from any country to substantiate the deterrent punishment theory acting behind death sentences. On the other hand, 99 per cent of those who served long years of life-sentence in prison never went back to prison even for committing a minor offence after their release. In other words, death sentence not only violates the basic human rights norm of right to life, but also frustrates the basic concept rehabilitation of prisoners in modern codes of prison reforms.

Deterrent : The Indian Experience:

The Indian experience of awarding capital punishment to political murderers is evident. Nathuram Vinayak Godse was the first person sent to gallows in independent India -- (as against Dhananjoy's number 55) - for committing the first major political murder of Mahatma Gandhi. But that never deterred people from killing the first reigning Prime Minister of India, Indira Gandhi, within her official residence in 1984. Satwant Singh and Kehar Singh were hanged in Tihar jail in 1998 on account Indira Gandhi's murder. That, too, never deterred others from killing her son, Rajiv Gandhi, in 1991 and merely three years after Satwant-Kehar Singhs were executed. In Rajiv Gandhi murder case, the special TADA Court at Poonamalee near Chennai created a history by awarding death sentence to the largest number of 26 persons. That verdict, pronounced on January 28, 1998, said that the severe punishment was given to all the accused so as to serve as a deterrent against those who believe in terrorism. Undoubtedly, Judge Navaneetham's verdict got wider coverage, especially in Tamilnadu. However, it had no effect on those who committed the Coimbatore serial blast on February 14, 1998, and hardly 17 days after pronouncement of this "en-mass death sentence". (After the equally en-mass acquittal by the Supreme Court later, only three of those 26 persons - Perarivalan, Santhan and Murugan - still remain as condemned prisoners in Salem Central Prison).

In India, Travancore region in Kerala is the only province that exemplifies the fact that capital punishment never act as deterrent to reduce the crime. For, Travancore is perhaps the first princely state anywhere in the world to abolish capital punishment in 1946, which was reintroduced in 1950 after its unification with independent India. Figures in Poojapura Central Jail of Thiruvananthapuram testify that the number of murders committed during the four-year period of 1946-1950 when capital punishment was abolished was less than the 1950-54 periods after its reintroduction. (The latest princely state to abolish capital punishment was Bhutan through a Royal decree promulgated in March 2003).

The world of death sentence:

According to Amnesty International, a total of 77 countries had abolished death penalty for all crimes by the end of 2003. Out of this, the homicide rate per 100,000 population in Canada has fallen 40 per cent since abolition of death penalty for murder way back in 1976. In countries where death penalty in force the risk of executing innocents can never be eliminated, Amnesty says. It pointed out: "Since 1973, 113 prisoners have been released from death row in the USA after evidence emerged of their innocence of the crimes for which they were sentenced to death. Some came close to execution after spending many years under sentence of death. Recurring features in their cases include prosecutorial or police misconduct; use of unreliable witness testimony, physical evidence, or confessions; and inadequate defense representation. Other US prisoners have gone to their deaths despite serious doubts over their guilt." According to Amnesty, it is time for all governments to comply with their international obligations since "the death penalty is the ultimate cruel, inhuman and degrading punishment and a flagrant denial of the right to life."

As per official figures at least 2,756 people were awarded death sentence in 63 countries in 2003, according to Amnesty International's reports, while a total of 1,146 "known executions" were carried out in 28 countries in the same year. Out of this, 84 percent executions had taken place in China, Iran, the USA and Viet Nam, which clearly indicate that all States, whether capitalist, socialist, or Islamist, happily favor in killing their own erring citizens. Amnesty also recorded that two child offenders under the age of 18 were executed in 2003, one each in China and USA. Limited and incomplete records available to Amnesty International indicate that China executed at least 726 people in 2003, while 108 executions were carried out in Iran, 65 in USA and 64 people in Viet Nam.

In 2002, a total of 1,526 persons were executed in 31 countries while 3,248 death sentences were awarded in 67 countries. Once again, the first three countries of China (1,060), Iran (113) and USA (71) accounted for 81 percent of total executions carried out in 2002, while Saudi Arabia (48) occupied the fourth place, followed by Sudan (40) and Vietnam (34).

The Chuch and the Marxists :

After the latest execution of Dhananjoy Chatterjee, two institutions, namely the Marxist-led West Bengal Government, and the Welland Gouldsmith School of Kolkata where his 14-year old victim studied 14 years ago came under criticism of human rights bodies. The South Asia Human Rights Documentation Centre (SAHRDC) took strong exception to the school principal, Ms. Gillian D'Costa Hart, vehemently speaking out on numerous occasions in favour of the death sentence to Dhananjoy as the "appropriate punishment". It said: "Hart's remarks advocating death penalty are extremely troublesome because her message appears to uphold aspects of the criminal justice system that are founded on vengeance. These ideas violate human sanctity and are contrary to the principles of mercy and forgiveness of the Christian tradition. It is therefore surprising that the Church has not found it fit to rein Ms. Hart's obvious attempts to inculcate ideas of retributive justice in young minds."

The SAHRDC further said : "The Church of England as well as the World Council of Churches, of which the Church of North India that governs the school is a member, holds an unequivocal position against death penalty. The General Synod, representing the Church of England's official view, pronounced on the death penalty issue in 1983, "[t]hat this Synod would deplore the reintroduction of capital punishment into the United Kingdom sentencing policy," and it has not changed the policy since then. The World Council of Churches demonstrated its firm conviction against the death penalty in a letter to the US Governor George Ryan, commending his order to commute all death sentences in Illinois in 2003: "The capital punishment operates against the Christian principles of compassion, love and forgiveness. To promote the abolition of capital punishment is an expression of Christian belief in the sanctity of life.. The Anglican Church of Canada had been actively involved in opposing the 1987 reinstatement attempt of capital punishment in Canada. In the United States, the Anglican Bishop of Oklahoma, the Rt Rev Robert Moody actively advocated a moratorium on the death penalty in 2001 when 11 people were executed in Oklahoma. Bishop Frank Griswold, the Bishop and Primate of the Episcopal (Anglican) Church of the US, criticised the execution of Timothy McVeigh in 2001 stating that "[a] public ritual of death can only coarsen our spirits and deaden our sensibilities. Though undoubtedly Timothy McVeigh committed one of the most heinous crimes in the history of our country, I fear that execution as spectacle can only poison the soul of our nation."

According to SAHRDC, the Bishop of Kolkata and the Church of North India have clearly failed to exercise their moral leadership by taking a strong stance against the death penalty and reproving Ms. Hart's statements. Since the Church of North India continues to maintain a silence on the issue are we to assume that it subscribes to Ms. Hart's views, it asked. "As an educator, moreover, it was Ms. Hart's duty to encourage a debate on this critical issue and supply both sides of the argument. Instead, she asked a black-or-white question and demanded a show of hands without urging the girls to reflect on it. And the answer apparently settled the issue. It must be asked if the Anglican Church wishes the students under its tutelage to imbibe such values, and worse, have them answer crucial questions without reflection", the human rights body commented.

Before taking West Bengal's "Stalinist rulers" to task for supporting Dhananjoy's execution, the SAHRDC quoted Justice Bhagwati's 1980 dissenting judgment in Bachan Singh case: "There can be no doubt that death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived sections of the community [,] and the rich and the affluent usually escape from its clutches."

According to SAHRDC, "it is evident that the Kolkata Communist (Comrade Buddhadev Bhattacharya who shouted "we want him hanged") has more in common with Stalin than with Marx. The Indian Marxists' preoccupation about a correct rendering of Indian history notwithstanding, they seem to have forgotten the revolution of 1917. "Down with the Death Penalty!" was the cry in Moscow before February 1917. The words were emblazoned on the red flags and when the Tsar abdicated in February 1917, the death penalty was abolished. Perhaps West Bengal's communists need to be reminded of Marx's statement on capital punishment in a short article he published in the New York Daily Tribune in 1853 (Cain and Hunt (eds.) 1979: 193-196). After stating that "it would be very difficult, if not altogether impossible, to establish any principle upon which the justice or expediency of capital punishment could be found in a society glorying in its civilization," he criticized proponents of the death penalty like Kant and Hegel for giving "transcendental sanction to the rules of existing society". He concluded the article with the following rhetorical question: "Is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room only for the supply of new ones?"

Clearly, all of us - human rights activists, teachers, legal professionals, the judiciary, Christians, Marxists and all those who would like to see civilization evolve rather than degenerate - need to do some introspection. The noose around our basic human values is getting tighter, the SAHRDC concluded.

Also, in written history, Jesus Christ was the first to be executed by a then State, not to speak scores of communists all over the world in the present modern world.